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MANUAL 


FOR 


COURTS-MARTIAL. 


Prepared  under  the  sapervision  of  th. 
Judge- Advocate-General 


First  Lieut.  ARTHUR  MURRAY,  First  Artillen 


Publ'shed  by  authority  of  the  Secretary  of  War 

FOR    USE    IN    THE 

Army  of  the  United  States. 


WASHINGTON  : 

GOVERNMEiVr  PRINTING  OFFICE, 
1S95. 


JAM^ 


ABBREVIATIONS. 

A.  R. — United  States  Army  Regulations  of  1895. 

A.  W. — Articles  of  War. 

R.  S.  — Revised  Statutes. 

J.  A.  G. — Judge- Advocate  General. 

2 


War  Department, 
Washington,  October  2.  1895. 
The  Manual  for  Courts-Martial,  prepared  by  directiou 
of  the  Secretary  of  War  for  use  iu  the  Army  of  the  United 
States,  is  approved  and  will  be  published  for  the  informa- 
tion and  guidance  of  all  concerned. 

Daniel  S.  Lamont, 

Secreiarn  of  War. 


934158 


A  MANUAL  FOR  COURTS-MARTIAL. 


INTRODUCTION. 

MILITARY  JURISDICTIOX. 

Sec.  I.  Military  Jurisdiction  is  of  four  kinds : 

1.  Military  La-w  ;  which  is  the  legal  system  that 
regulates  the  government  of  the  military  establishment. 
It  is  a  branch  of  the  municipal  law,  and  in  the  United 
States  derives  its  existence  from  special  constitutional 
grants  of  power. 

2.  The  Law  of  Hostile  Occupation  (Military  Govern- 
ment) ;  that  is,  military  power  exercised  by  a  belligerent 
by  virtue  of  his  occupation  of  an  enemy's  territory,  over 
such  territory  and  its  inhabitants.  This  belongs  to  the 
Law  of  War  and  therefore  to  the  I^aw  of  Nations. 

3.  Martial  Law  at  Home  (or,  as  a  domestic  fact) ;  by 
which  is  meant,  military  power  exercised  in  time  of  war, 
insurrection,  or  rebellion,  in  parts  of  the  country  retain- 
ing their  allegiance,  and  over  persons  and  things  not 
ordinarily  subject  to  it. 

4.  Martial  Law  applied  to  the  Army;  that  is,  mili- 
tary power  extended  in  time  of  Avar,  insurrection,  or  rebel- 
lion over  persons  in  the  military  service,  as  to  obligations 
arising  out  of  such  emergency  and  not  falling  within  the 
domain  of  military  law,  nor  otherwise  regulated  by  law. 

The  last  two  divisions  are  applications  of  the  doctrine 
of  Necessity  to  a  condition  of  war.  They  spring  from 
the  right  of  national  self-preservation.^ 

Sec.  II.  The  Source  of  Military  Jurisdiction  is  the 
Constitution ;  the  specific  provisions  relating  to  it  being 

J  J.  A.  G. 


4  MANUAL  FOR  COURTS  MARTIAL. 

found  in  the  powers  granted  to  Congress,  in  the  authority 
vested  in  the  President,  and  in  a  provision  of  the  Vth 
Amendment. 

^  2.^  Military  J*aw lis  derived  from  both  Written  and 
•^mv'Htten  Svurees,*  \  '« .. .' 
*  Tlie  Written  Sources,  ar^,-  the  Articles  of  War,  adopted 
iife /u  lla?t.' of  t]>0  Reivi'sedt Statutes  of  the  United  States  in 
•48t4  audVi'nce  amended  in  some  particulars;  other  statu- 
tory enactments  relating  to  the  military  service;  the 
Army  Regulations ;  and  General  and  Special  Orders,  and 
decisions  promulgated  by  the  War  Department  and  by 
department,  post,  and  other  commanders. 

The  Univritten  Source  is  the  '^custom  of  war,"  consist- 
ing of  the  customs  of  the  service  both  in  peace  and  in 
war. 

Sec.  III.  Military  Tribunals  are  of  three  kinds,  viz: 

1.  Courts  Martial  (including  summary  courts),  for  the 
trial  of  offenders  against  military  law. 

2.  Courts  of  Inquiry,  for  examining  transactions  of, 
or  accusations  or  imputations  against,  officers  or  soldiers. 

3.  Military  Commissions,  for  the  trial  of  offenders 
against  the  laws  of  war  and  under  martial  law  founded 
in  necessity. 

ARREST  AND  CONFINEMENT  BEFORE  TRIAL.' 

Sec.  I.  Arrest  of  Officers.  "  Officers  charged  with 
crime  shall  be  arrested  and  confined  in  their  barracks, 
quarters,  or  tents,  and  deprived  of  their  swords  by  the 
commanding  officer."- 

2.  ''Commanding  officers  only  have  power  to  place 
officers  in  arrest,  except  as  provided  in  the  24th  Article 
of  War.  An  arrest  may  be  ordered  by  the  commanding 
officer,  in  person  or  through  his  staff'  officer,  orally  or  in 
writing."'^ 


1  Omission  of  arrest  does  not  affect  the  jurisdiction  of  a  court. 

2  65th  A.  W. 

3  Par.  897,  A.  R. 


ARREST   AND   CONFINEMENT   BEFORE   TRIAL.   5 

3.  "An  officer  arrested  will  repair  at  once  to  his  tent 
or  quarters,  and  there  remain  until  more  extended  limits 
have  been  granted  by  the  commanding  officer,  on  written 
application.  Close  confinement  will  not  be  enforced  ex- 
cept in  cases  of  a  serious  nature."  ^ 

4.  "  An  officer  in  arrest  will  not  wear  a  sword  nor  visit 
officially  his  commanding  or  other  superior  officer,  unless 
directed  to  do  so.  His  applications  and  requests  of  every 
nature  will  be  made  in  writing."^ 

5.  "Officers  will  not  be  placed  in  arrest  for  light  of- 
fenses. For  these  the  censure  of  the  commanding  officer 
will  generally  answer  the  purpose  of  discipline.  When- 
over  a  commanding  officer  places  an  officer  in  arrest  and 
releases  him  without  preferring  charges,  he  will  make 
a  w^ritten  report  of  his  action  to  the  department  com- 
mander, stating  the  cause.  The  department  commander, 
if  he  thinks  the  occasion  requires,  will  call  on  the  officer 
arrested  for  any  explanation  he  may  desire  to  make,  and 
take  such  other  action  as  he  may  think  necessary,  for- 
warding the  j)apers  to  the  Adjutant-General  of  the  Army 
for  file  with  the  officer's  record,  or  for  further  action,"  ^ 

6.  "A  medical  officer,  charged  with  the  commission  of 
an  offense,  need  not  be  placed  in  arrest  until  the  court- 
martial  for  his  trial  conv^eues  if  the  service  would  be 
inconvenienced  thereby,  unless  the  charge  is  of  a  flagrant 
character."  ^ 

7.  "When  an  officer  is  -pnt  in  arrest  for  the  purpose  of 
trial,  except  at  remote  military  posts  or  stations,  the 
officer  by  w  hose  order  he  is  arrested  shall  see  that  a  copy 
of  the  charges  on  which  he  is  to  be  tried  is  served  upon 
him  within  eight  days  after  his  arrest,  and  that  he  is 
brought  to  trial  within  ten  days  thereafter,  unless  the 
necessities  of  the  service  jirevent  such  trial ;  and  then  he 
shall  be  brought  to  trial  within  thirty  days  after  the 
exx)iration  of  said  ten  days.  If  a  copy  of  the  charges  be 
not  served,  or  the  arrested  officer  bo  not  brought  to  trial, 

'Par.  898,  A.  R.  sji,  ggo. 

a  lb.  901.  4  lb.  900. 


6  MANUAL  FOR   COURTS-MARTIAL. 

as  herein  required,  the  arrest  shall  cease.  Bnt  officers 
released  from  arrest,  under  the  provisions  of  this  article, 
may  be  tried,  whenever  the  exigencies  of  the  service  shall 
permit,  within  twelve  months  after  such  release  from 
arrest."  * 
Sec.  II.  Arrest  and  Confinement  of  Soldiers. 

1.  Enlisted  men  in  arrest  in  barracks  or  quarters  will 
be  designated  as  ''in  arrest;"  those  coniined  in  the  guard- 
house awaiting  trial  or  result  of  trial  as  **in  confine- 
ment." 2 

2.  Noncommissioned  officers  against  whom  charges  may 
be  preferred  for  trial  will  be  placed  in  arrest  iu  their  bar- 
racks or  quarters.  They  will  not  be  confined  in  the  guard- 
house in  company  Avith  privates,  except  in  aggravated 
cases  or  when  escape  is  feared.'^ 

3.  Noncommissioned  officers  in  arrest  will  not  be  re- 
quired to  perform  any  duty  in  which  they  may  be  called 
upon  to  exercise  command.  Noncommissioned  ofticers  in 
confinement  will  not  be  sent  out  to  work  with  iirisouers 
under  sentence. 

4.  Privates  ''against  whom  charges  may  be  preferred  for 
trial  by  summary  court  will  not  be  confined  in  the  guard- 
house, but  will  be  placed  in  arrest  in  quarters,  before  and 
during  trial  and  while  awaiting  sentence,  except  when  in 
particular  cases  restraint  may  be  necessary."^ 

5.  Privates  against  whom  charges  may  be  preferred  for 
trial  by  general  court-martial  will  be  confined  in  the 
guardhouse  before  and  during  trial.  Wliile  awaiting 
trial  and  sentence,  or  undergoing  sentence,  they  will,  if 
practicable,  be  kept  apart  from  privates  confined  for 
minor  offenses  or  by  sentence  of  an  inferior  court.' 

6.  Privates  in  arrest  may,  in  the  discretion  of  the  com- 
manding officer,  be  required  to  attend  parades,  inspec- 


1  71st,  A.  W. 

2  Regarding  enlisted  men  undergoing  sentence,  see  page  60,  par.  1, 
infra. 

3  Pars.  904  and  93C,  A.  R.     As  to  placing  soldiers  in  irons,  see  page 
70,  par.  3,  infra. 

-i  Par.  93(5,  A.  R. 
6  lb.  907. 


ARREST  AND   CONFINEMENT   BEFORE  TRIAL.    7 

tions,  drills,  school,  or  other  military  duties  and  to  assist 
in  policing  in  and  around  their  barracks.  Privates  in 
confinement  awaiting  trial  will  not  be  sent  to  work  with 
prisoners  undergoing  sentence  if  it  can  be  avoided;  but 
may,  in  the  discretion  of  the  commanding  officer,  ho  re- 
quired to  attend  drills,  or  be  sent  to  work  during  the 
usual  working  hours  under  charge  of  a  special  sentinel.^ 

7.  Except  as  provided  in  the  24th  Article  of  War  or 
when  restraint  is  necessary,  no  soldier  will  be  confined 
without  the  order  of  an  officer,  who  shall  previously  in- 
quire into  his  offense.  Confinement  without  trial  as  a 
punishment  for  an  offense  is  forbidden.  An  officer  author- 
izing the  arrest  or  confinement  of  a  soldier  will,  as  soon 
as  practicable,  report  the  fact  to  his  company  or  detach- 
ment commander.-^ 

Sec.  III.  General  Provisions  Relating  to  the 
Arrest  of  Officers  and  Soldiers. 

1.  "  No  *  *  *  officer  commanding  a  guard  shall 
refuse  to  receive  or  keep  any  prisoner  committed  to  his 
charge  by  an  officer  belonging  to  the  forces  of  the  United 
States ;  provided  the  officer  committing  shall,  at  the  same 
time,  deliver  an  account  in  writing,  signed  by  himself, 
of  the  crime  charged  against  the  prisoner."^  ''Every 
officer  to  whose  charge  a  prisoner  is  committed  shall, 
within  twenty-four  hours  after  such  commitment,  or  as 
soon  as  he  is  relieved  from  his  guard,  report  in  writing,'' 
to  the  commanding  officer,  the  name  of  such  prisoner,  the 
crime  charged  against  him,  and  the  name  of  the  officer 
committing  him."^ 

2.  ''All  persons  under  guard  without  written  charges  *5 
will  be  released  by  the  old  officer  of  the  day  at  guard 


>  Par.  907,  A.  R. 

"lb.,  905  and  906. 

367th  A.  W. 

*This  report  is  usually  written  in  the  "  Guard  Report  Book, "  and 
presented  to  the  commanding  otficer  by  the  old  officer  of  the  day  at 
guard  mounting. 

668th  A.  W. 

« Charges  are  usually  handed  to  the  old  officer  of  the  day  at  guard 
mounting;  or  in  serious  cases,  he  is  notified  that  charges  -will  be 
turned  in  to  the  commanding  officer  aa  soon  as  they  can  be  made  out. 


8  MANUAL   FOR    COURTS-MAUTIAL. 

mountinn^,  unless  specific  orders  to  tlie  contrary  have  been 
given  in  each  case  by  the  commanding  officer."'  No  officer 
or  soldier  put  in  arrest  or  confinement  will  be  so  restrained 
more  than  eight  days,  or  until  such  time  as  a  court-martial 
can  bo  assembled.- 

3.  On  the  march,  field  and  regimental  staff  officers,  and 
regimental  noncommissioned  staff  officers,  in  arrest,  ■will 
follow  in  rear  of  their  respective  regiments;  medical 
officers,  hospital  stewards,  privates  of  the  hospital 
corps,  and  post  noncommissioned  staff  ofificers,  in  rear 
of  the  commands  to  which  they  belong ;  company  officers, 
noncommissioned  officers,  and  jirivates  in  rear  of  their 
respective  companies;  and  all  persons  in  confinement, 
with  and  under  charge  of  the  guards  of  their  respective 
commands,  unless  otherwise  specially  directed.-' 


iPar.  908,  A.  11.  270th  A.  W.  U'ar  902,  A.  R. 


COURTS-MARTIAL. 

COMPOSITION. 

1.  Courts-martial  are  composed  of  commissioned  offi- 
cers only.  All  officers  of  the  Regular  Army,  except  those 
on  the  retired  list '  and  professors  of  the  U.  S.  Military 
Academy,  are  eligible  for  detail  for  the  trial  of  offenders 
belonging  to  tlie  Regular  Army;-  but  no  officer  will  be 
detailed  for  the  trial  of  an  officer  superior  to  himself  in 
rank  when  it  can  bo  avoided.-' 

2.  Officers  of  the  Regular  Army  and  of  the  Marine  Corps, 
detached  for  service  with  tlie  Army  by  order  of  the  Presi- 
dent, may  bo  associated  together  for  the  trial  of  offenders 
belonging  to  either  of  these  bodies.^  In  like  manner 
regular  officers  holding  volunteer  commissions  may  be  asso- 
ciated with  volunteer  officers  for  the  trial  of  volunteers. 
But  with  these  exceptions  officers  of  the  Regular  Army 
are  not  competent  to  sit  on  courts  for  the  trial  of  offenders 
belonging  to  other  forces.-^ 

3.  Officers  of  volunteers  and  of  the  militia,  when  the 
latter  are  called  into  the  service  of  the  United  States, 
are  competent  to  act  as  members  of  courts  for  the  tri.al  of 
regular  officers  or  soldiers.  Militia  officers  are  also  com- 
petent to  sit  ux)on  courts  for  the  trial  of  volunteers.  But 
courts  martial  for  the  trial  of  militia  must  be  comx)osed  of 
militia  officers  only.'^ 

4.  In  the  U.  S.  military  service,  the  following-named 
courts-martial  are  authorized:  1st,  the  '* General  Court- 

1  Sec.  1259,  R.S. 

2An  "acting  assistant  surgeon,"  being  a  civilian,  is  not  eligible,  and 
chaplains  are  not  so  detailed  in  practice. 
3  79tliA.  W. 
178th  A.  W. 
8  77th  A.  W. 
eSec.  1658.  R.S. 

9 

4644 1* 


10  MANUAL   FOR   COURTS-MARTIAL. 

martial;"  2d,  tlie  "Summary  Court;"  3d,  tlio  "Field- 
officer's  Court;"  4th,  tlie  "Garrison  Court-martial;" 
5tli,  tlie  "Regimental  Court-martial." 

5.  The  General  Court-martial,  being  the  most  impor- 
tant, will  be  first  considered — the  others,  ordinarily 
called  "Inferior  Courts-martial,"  in  the  order  named. 
But,  as  all  courts-martial  have  much  in  common  in  regard 
to  their  jurisdiction,  procedure,  punishment,  etc.,  the 
text  may,  as  a  rule,  be  regarded  as  apposite  to  all,  unless 
the  general  court  is  specially  mentioned.  Exceptions  in 
regard  to  jurisdiction,  etc.,  will  be  made  as  each  inferior 
court  is  considered. 

6.  A  General  Court-martial  may  consist  of  any  number 
of  members  from  five  to  thirteen,  inclusive,  and  a  judge- 
advocate;  but  of  not  less  than  thirteen  members  ^Yhen 
this  number  can  be  convened  without  manifest  injury 
to  the  service. »  When,  in  the  course  of  a  trial,  the  court 
is  reduced  in  number  by  reason  of  absence,  challenge,  or 
the  relieving  of  members,  it  may  proceed  with  business 
so  long  as  Jive  members  remain.  When  from  any  cause  a 
general  court  is  reduced  below  the  minimum,  five,  the 
remaining  members  should  direct  the  judge-advocate  to 
report  the  fact  to  the  convening  authority,  and  await 
further  orders.  In  such  a  case,  if  the  trial  has  not  been 
entered  upon,  new  members  maybe  added;  but  if  any 
testimony  has  been  taken,  the  court  had  best  be  dissolved 
and  a  new  one  ordered. ^ 

CONSTITUTION . 

1.  The  President  is  empowered  to  institute  general 
courts-martial — 1st,  as  Commander  in  chief  of  the  Army, 
under  the  Constitution;  2d,  in  the  special  contingency 
mentioned  in  the  next  paragraph;  Sd,  in  the  particular 
cases  provided  for  by  section  1280,  Revised  Statutes. 

'75th  A.  W.  "A  decision  of  tlie  appointing  authority  as  to  the 
numher  that  can  ho  asscnihled  without  injury  to  tlie  service  is 
conclusive."  ^Par.  917,  A.  II.) 

2  For  form  of  order  for  general  court,  see  page  119,  infra. 


JURISDICTION.  11 

2.  Any  general  officer  commanding  an  army,  a  territo- 
rial division,  or  a  department,  or  colonel  commanding  a 
separate  department,  may  appoint  a  general  court-mar 
tial  whenever  necessary.  '  But  vrlien  any  such  com- 
mander is  the  accuser  or  prosecutor  of  any  officer  under 
his  command  the  court  must  he  appointed  by  the  Presi- 
dent.'^ In  time  of  war  this  power  is  extended  to  the 
commander  of  a  tactical  division  or  of  a  separate  bri- 
gade; but  in  this  case  when  such  commander  is  the 
accuser  of  any  person  under  his  command  the  court 
must  be  appointed  by  the  next  higher  commandei'.^ 

3.  The  Superintendent  of  the  U.  S.  Military  Academy 
has  power  to  convene  general  courts-martial  for  the  trial 
of  cadets,  subject  to  the  conditions  just  stated  regarding 
other  general  courts.^ 

4.  The  officer  who  appoints  a  court-martial — general, 
garrison,  or  regimental — may  dissolve  it,  and  control  its 
existence,  but  not  the  subject-matter  of  its  deliberations. 
In  the  absence  of  special  orders  or  legislation  to  that 
eflfect,  personal  presence  within  the  territorial  limits  of 
his  department  is  not  essential  to  the  validity  of  com- 
mands given  by  a  department  commander  to  bo  executed 
within  such  limits,  such,  for  instance,  as  the  appointment 
of  a  court-martial. 

JURISDICTION. 

Sec.  I.  Courts-martial  derive  their  existence  solely 
from  acts  of  Congress,  and  their  jurisdiction  is  limited  to 
the  purpose  of  the  maintenance  of  military  discipline. 
Their  decisions,  within  their  jurisdiction,  are  not  review- 
able by  any  courts  whatever."  The  30th  Article  of  Wai 
relates  to  an  exceptional  procedure,  not  necessary  to  con- 
sider in  this  connection. 

'  See  par.  4,  this  article 

2  72d  A.  "W.     As  to  -vrhen  a  commander  is    'the  accuser  or  pros- 
ecutor," see  Digest,  Opin.  J.  A.  G.,  p.  82. 
»  73d  A.  W. 
4  Sec.  1326,  R.  S. 
^See  authorities  cited  in  note  1,  page  313,  Digest,  Opin.  J.  A.  G. 


12  MANUAL  FOR   COURTS-MARTIAL. 

2.  Courts-martial  have  exclusive  jurisdiction  to  try  for 
acts  constituting  military  offenses  only,  and  also  jurisdic- 
tion to  try  for  acts  wliicli  besides  constituting  military 
offenses  are  civil  crimes.  In  the  latter  case  the  mili- 
tary ordinarily  gives  precedence  to  the  civil  court,  hut 
when  an  officer  or  a  soldier  has  been  arraigned  before  a 
duly  constituted  court-martial  for  an  offense  triable  by 
it,  the  jurisdiction  thus  attached  can  not  be  set  aside  by 
the  process  of  a  State  court.' 

3.  As  regards  persons,  courts-martial  have  jurisdiction, 
at  all  times  and  in  all  places,  over  officers  and  soldiers  of 
any  troops,  whether  militia  or  others,  mustered  and  in 
pay  of  the  United  States,^  over  officers  and  soldiersof  the 
marines,  when  detached  for  service  with  the  Army,  =^  over 
persons  who  fraudulently  enlist  in  the  service  of  the 
United  States  and  receive  pay  or  allowance  thereunder, ^ 
and  over  offenders,  in  general,  to  whom,  owing  to  the 
commission  of  a  crime,  military  jurisdiction  has  legally 
attached — as  by  an  arrest  or  confinment — before  their  dis- 
charge from  service.  This  jurisdiction  over  persons  in  the 
military  service  covers  all  military  offenses  committed  by 
them,  whether  within  or  beyond  the  territorial  jurisdic- 
tion of  the  United  States.  Military  offenses  are  not  ter- 
ritorial.-'^ 

4.  As  a  rule,  military  jurisdiction  ends  when  a  soldier  is 
discharged.  The  present  exceptions  to  this  rule  are,  dis- 
charged officers  and  soldiers  guilty  of  frauds  against  the 
United  States  under  the  60th  Article  of  War,  aud  dis- 
charged officers  granted  trial  after  summary  dismissal, 
under  section  1230,  Revised  Statutes. 

1  See  authorities  cited  in  note  1,  page  329,  Digest,  Opin.  J.  A.  G. 

264tli  A.  W.     This  includes  retired  officers  and  soldiers. 

3Sec.l621,R.S. 

4  Act  of  July  27,  1892 ;  see  G.  O.  57,  A.  G.  O.,  1892.  A  fraudulent  en- 
lintmcnt  is  an  enlistment  procured  by  means  of  a  willful  Tnisreprcsen- 
tation  in  regard  to  a  qualification  or  disqualification  for  enlistment, 
or  by  intentional  concealment  of  adi.sqnalification,  which  has  had  the 
effect  of  causing  the  enlistment  of  a  man  not  qualified  to  be  a  soldier, 
and  who  but  for  such  false  representation  or  concealment  would  have 
been  rejected.  ^  J.  A.  G. 


JURISDICTION.  13 

5.  Ill  time  of  war  this  jurisdiction  extends  to  ''all  re- 
tainers to  the  camp  and  all  persons  serving  with  the 
armies  of  the  United  States  in  the  iield,  though  not  en- 
listed soldiers;"'  to  any  person  who  *' relieves  the  enemy 
with  money,  victuals,  or  ammunition,  or  knowingly  har- 
bors or  protects  an  enemy ;"  -  or  who  **  holds  correspond- 
ence with,  or  gives  intelligence  to,  the  enemy,  either 
directly  or  indirectly ;  "  ^  and  to  spies. ^ 

6.  As  refiards  offenses,  the  Jurisdiction  embraces,  the 
offenses  specilically  defined  in  the  Articles  of  War,  or 
included  under  the  general  terms  of  the  Gist  and  62d 
articles ;  ■''  the  offense  of  military  persons  trading  with  the 
enemy, '5  and  that  of  fraudulently  enlisting  in  the  service 
of  the  United  States." 

7.  A  court  having  once  duly  assumed  jurisdiction  of  an 
offense  and  person,  can  not,  by  any  wrongful  act  of  the 
accused,  be  ousted  of  its  authority  or  discharged  from  its 
duty  to  proceed  fully  to  try  and  determine,  according  to 
law  and  its  oath.  Thus  the  fact  that,  pending  the  trial, 
the  accused  has  escaped  from  military  custody,  furnishes 
no  ground  for  not  i)roceeding  to  a  finding,  and,  in  the 
event  of  conviction,  to  a  sentence,  in  the  case;  and  the 
court  may  and  should  find  and  sentence  as  in  any  other 
case. 

Sec.  II.  General  Courts-Martial  have,  as  regards  per- 
sons and  ivith  reference  to  other  courts-martial,  exclusive 
jurisdiction  over  officers,^  cadets,''  and  **  candidates  for 
promotion."'"    Over  enlisted  men,  other  than  candidates 

1 63(1  A.  W. 

2  451hA.W. 

3  4Ctli  A.W. 

4  860.13433.8. 

s  Military  offenses  are  non-territorial.    See  page  12,  par.  3,  supra. 

6  Sees.  5306  and  5313,  R.S. 

7  Act  of  July  27, 1892 ;  see  G.  O.  57,  A.  G.  O.,  1892.  For  definition  of 
fraudulent  enlistment,  see  page  12,  note  4,  s^ipra. 

883d  A.  W. 
9  860.1326,  U.S. 
i«Actof  July  30,  1892. 


14  MANUAL   POR   COURTS-MARTIAL. 

for  promotion,  they  have  concurrent  jurisdiction  with  the 
inferior  courts  in  cases  cognizable  by  the  latter.' 

2.  As  i'e(/ards  offenses,  '^  they  have  exclusive  jurisdiction 
over  the  ofi'ense  of  fraudulent  enlistment;'^  over  all 
offenses  punishable  capitally  ;^  over  those  defii^ed  in  the 
58tli  Article,  when  committed  in  time  of  war;  and  over 
those  for  which  the  limit  of  punishment  i>rescribed  by 
the  President,  ])revious  convictions  being  considered,  is 
in  excess  of  the  limit  of  the  punishing  2)ower  of  an  in- 
ferior court  as  defined  by  the  83d  Article  of  War.''  Over 
all  serious  offenses  (including  those  named  in  the  58th 
Article,  except  murder,  in  time  of  peace)  for  which  a 
limit  of  punishment  has  not  been  prescribed,  but  for 
which  the  usual  punishment  fixed  by  custom  of  service 
exceeds  the  punishing  power  of  an  inferior  court,  general 
courts-martial  also  have  exclusive  jurisdiction.  Over  all 
minor  offenses  they  have  concurrent  jurisdiction  with  the 
inferior  courts;  but  no  case  should  be  referred  to  a  gen- 
eral court-martial  that  can  jiroperly  be  tried  by  an  infe- 
rior court.  If  there  be  any  doubt  about  the  jurisdiction 
of  the  lower  court,  the  matter  should  be  referred  to  the 
authority  comjietent  to  order  a  general  court-martial  in 
the  case,  for  his  decision. 

'  Par.  931,  A.  R.  prescribes  that  noncommissioned  officers  above  the 
rank  of  corporal  Avill  not,  if  they  object  thereto,  be  bronght  to  trial 
before  regimental,  garrison,  or  summary  courts-martial,  witlioiit  tlie 
authority  of  the  officer  comi)etent  to  order  their  trial  by  general 
court-martial. 

2 Military  offenses,  wheresoever  committed,  are  punishable  under 
the  Artich^s  of  AYar;  see  page  12,  par.  3,  supra. 

3  For  definition  of  fraudulent  enlistment,  see  ib.,  note  4. 

183d  A.  AV. 

^  The  rule  of  substitution  of  punishments  given  on  page  62,  infra 
will  be  used  in  determining  as  to  the  jurisdiction  of  an  inferior 
court,  e.g.,  the  limit  of  punishment  prescribed  for  "absence  from 
duty  as  company  or  hospital  cook"  is  "forfeiture  of  $10;"  if  two 
previous  convictions  be  considered  with  such  a  case,  the  forfeiture 
may  be  increa^jOd  by  the  rule  for  previous  convictions,  given  on  page 
59,  infra,  to  $20,  which  forfeiture  is  greater  than  an  inferior  court 
may  aAvard ;  but  by  the  rule  for  substitution  of  punishments,  this 
raaj'  be  made  $10  forfeiture  and  twenty  days  confinement,  which  is 
within  the  limit  of  the  punishing  power  gf  an  inferior  court. 


CHARGES  AND   SPECIFICATIONS.  15 


CHARGES  AND  SPECIFICATIONS. 

Sec,  I.  A  military  charge  corresponds  to  a  civil  indict- 
ment. It  consists  of  two  parts — the  technical  '*  charge,  " 
which  designates  the  alleged  offense  in  general  terms,  and 
the  ^^  specification,'^  which  sets  forth  the  facts  constitut- 
ing the  same.  The  requisite  of  a  charge  is,  that  it  shall 
he  laid  nnder  the  proper  Article  of  War  or  other  statute; 
of  a  specification,  that  it  shall  set  forth  facts  sufficient 
to  constitute  the  particular  offense.  Under  the  general 
term  "charges"  any  number  of  technical  charges  and 
their  specifications  may  be  included. 

2.  When  a  charge  is  to  he  preferred,  the  Articles  of  War 
should  be  examined  to  see  if  the  alleged  offense  is  spe-_ 

^ially  provided  for  in  any  article ;  if  so,  the  charge  should 
be  laid  under  that  article.  In  drawing  up  the  technical 
charge,  a  brief  description  of  the  offense,  such  as  "Ab- 
sence without  leave,"  "Drunkenness on  duty,"  "Sleeping 
on  post,"' should  be  made,  and  the  phrase  "in  violation  of 

the Article  of  War  "  added  thereto.     If  the  offense  is 

not  provided  for  in  any  specific  article,  the  charge  should 
be  laid  under  one  of  the  general  articles,  the  61st  or  62d, 
depending  on  the  character  of  the  offense  and  the  rank 
of  the  offemler.  If  the  charge  is  laid  under  the  61st  Arti- 
cle, it  may  be  stated  as  "Conduct  unbecoming  an  officer 
and  a  gentleman  ;"  •  if  under  the  62d,  the  technical  charge 
should  be  briefly  stated  as  "Larceny,"  "Burglary," 
"  Drunkenness,  "  etc.,  according  to  the  offense,  followed 
by  the  phrase  "to  the  prejudice  of  good  order  and  mili- 
tary discipline, "  or  when  the  offense  can  not  be  briefly 
described,  it  may  be  charged  simply  as  "Conduct  to  the 
prejudice  of  good  order  and  militarj-  discipline.  " 

3.  When  an  offense  is  specifically  provided  for  in  an 
Article  of  War  the  charge  will  belaid  under  that  arti- 
cle and  not  under  the  62d  Article.     Especially  is  it  wrong 

'  As  to  offenses  under  the  61st  A.  "W.,  see  Digest,  Opin.  J.  A.  G., 
pp.  61-66. 


16  MANUAL   FOR   COURTS-MARTIAL. 

to  lay  a  charge  under  the  62d  Article  when  the  offense 
falls  under  an  article  which  prescribes  a  fixed  punishment. 

4.  In  case  of  an  absence  from  any  appointed  parade, 
drill,  or  other  exercise,  but  not  from  the  limits  of  the 
post,  the  charge  should  be  laid  under  the  33d  Article  of 
War ;  in  case  of  absence  from  the  post,  or  command,  under 
the  32d;  and  sometimes,  in  order  that  the  court  may  be 
able  to  judge  of  the  full  nature  of  the  offense,  under  both, 
as  when  some  duty,  other  than  an  ordinary  roll  call,  is 
neglected;  e.  g.,  when  a  soldier,  regularly  detailed  for 
guard,  absents  himself  not  only  from  guard  mounting 
but  also  from  his  post. 

5.  Soldiers  found  drunk  on  any  guard,  party,  or  other 
^luty  after  having  been  actually  placed  on  such  duty,  but 

not  until  then  discovered  to  be  drunk,  should  be  charged 
with  violation  of  the  38th  Article  of  War ;  otherwise,  as 
when  fouml  to J^.e^ii^oxicat^^a^l^xinrd  mounting  ey  upon 
formation  lor  drill,  muster,  etc.,  ■^ith  violation  of  the 
62d  Article. 

6.  Accused  persons  will  not  be  joined  in  the  same 
charge,  nor  tried  on  joint  charges,  unless  for  concert  of 
action  in  an  offense.  To  warrant  the  joining  of  several 
persons  in  the  same  charge,  the  offense  must  be  such  as 
requires  for  its  commission  a  combination  and  must  have 
been  committed  in  concert,  in  pursuance  of  a  common 
intent. 

7.  As  to  whether  an  act  which  is  a  civil  crime  is  also 
a  military  oflense  no  rule  can  be  laid  down  which  will 
cover  all  cases,  for  the  reason  that  what  may  be  a  mili- 
tary offense  under  certain  circumstances  may  lose  that 
character  under  others.  For  instance,  larceny  by  a  soldier 
from  a  civilian  is  not  always  a  military  crime,  but  it  may 
become  such  in  consequence  of  the  particular  features, 
surroundings,  or  locality  of  the  act.  What  these  may  bo 
can  not  be  anticipated  with  a  sweeping  rule,  comprehen- 
sive enough  to  provide  for  every  possible  conjunction  of 
circumstances.  Each  case  must  be  considered  on  its  own 
facts.  But  if  the  act  be  committed  on  a  military  reserva- 
tion, or  other  ground  occujiied  by  the  army,  or  in  its 


CHARGES  AND  SPECIFICATIONS.  17 

neighborliood,  so  as  to  be  in  the  coustructive  presence  of 
the  armj^ ;  or  if  committed  while  ou  duty,  particularly  if 
the  injury  be  to  a  member  of  the  community  whom  it  is 
the  offender's  duty  to  protect ;  or  if  committed  in  the  pres- 
ence of  other  soldiers,  or  while  in  uniform;  or  if  the 
otfender  use  his  military  position,  or  that  of  another,  for 
the  purpose  of  intimidation  or  other  unlawful  influence 
or  object — such  facts  would  be  sufficient  to  make  it 
prejudical  to  military  discipline  within  the  meaning  of 
the  62d  Article  of  War.i 

Sec.  II.  The  specification  need  not  possess  the  techni- 
cal nicety  of  an  indictment  at  common  law.  A  bald  state- 
ment of  facts  is  sufficient,  provided  the  legal  oftense  itself 
be  distinctly  and  accurately  described. - 

2.  In  order  that  the  accused  may  bo  left  in  no  doubt  as 
to  the  precise  oftense  which  he  is  called  on  to  disprove, 
the  time  and  2>lo,c€  of  an  alleged  off'ense  should  be  stated 
as  carefully  as  possible.  When  any  doubt  exists  as  to 
the  exact  date  and  locality,  it  may  be  stated  that  the  act 
specified  was  committed  "on  or  about"  a  certain  time,  or 
'*at  or  near"  a  given  place.  In  preparing  several  specifi- 
cations under  a  given  charge,  the  time  and  place  of  the 
alleged  off"eu3e  should  be  given  in  each. 

Sec.  III.  Many  of  the  Articles  of  War  include  two  or 
more  offenses.  When  a  charge  is  to  be  laid  under  such 
an  article,  the  particular  oftense  committed  should  be 
stated.  Laying  a  specification  in  an  alternative  form  is 
bad  pleading.  It  is  wrong  to  charge  with  "selling  or 
through  neglect  losing,"  in  violation  of  the  17th  Article 
of  W^ar. 

2.  The  prosecution  is  at  liberty  to  charge  an  act  under 
two  or  more  forms,  when  it  is  doubtful  under  which  it 
will  more  properly  be  brought  by  the  testimony'.  In  the 
military  practice,  the  accused  is  not  entitled  to  call  upon 

'J.A.G. 

2  VII,  Opin.  Att'y  Gen'l,  p.  604. 


18  MANUAI.  FOK   COURTS-MARTIAL. 

the  prosecution  to  elect  under  which  charge  it  wiil  i)ro- 
ceed  in  such,  or  indeed  any,  case. 

Sec.  IV.  Charges  preferred  for  offenses  cognizable  by 
inferior  courts  or  by  a  general  court  will  be  laid  before  the 
post  commander,  who  will  examine  them  as  to  the  rank 
of  the  accused  and  the  nature  of  the  offense.  Then,  in 
accordance  with  what  is  stated  on  pages  75  and  81,  infra, 
in  regard  to  the  jurisdiction  of  inferior  courts,  he  will,  if 
he  thinks  the  accused  should  be  tried,  refer  to  a  summary 
court  any  charge  against  an  enlisted  man^  for  an  offense 
for  which  the  prescribed  limit  of  punishment,  previous 
convictions  considered,-  does  not  exceed  the  limit  defined 
in  the  83d  Article  of  War,  or  for  which  the  punishment 
usually  given  does  not  exceed  the  same  limit,  and,  in  ac- 
cordance with  what  is  stated  on  page  13,  Sec.  II,  and  on 
page  14,  par.  2,  supra,  in  reference  to  the  jurisdiction  of  a 
general  court-martial,  he  v^\l\  forward  to  the  authority  com- 
petent to  order  a  general  court  any  charge  against  an  officer, 
a  cadet,  a  candidate  for  promotion,  or  any  charge  for  an 
offense  capitally  punishable  or  for  which  the  prescribed 
limit  of  punishment  or  the  punishment  usually  given 
exceeds  the  limit  defined  in  the  83d  Article.^ 

2.  "  Commanding  officers  will,  before  forwarding 
charges,  personally  investigate  them,  and,  by  indorse- 
ment on  the  charges,  will  certify  that  they  have  made 
such  investigation,  and  whether,  in  their  opinion,  the 
charges  can  be  sustained."^ 

3.  Charges  against  an  enlisted  man  forwarded  to  the 
authority  ordering  a  general  court-martial,  or  submitted 
to  a  summary,  garrison,  or  regimental   court,  must  be 


'  Candidates  for  promotion  excepted. 

2  See  page  59,  note  1,  infra. 

3  Charges  against  a  man.  reported  under  par.  134  A.  R.,  as  a  deserter 
from  the  Navy  or  Marine  Corps,  should  be  held  until  instructions  are 
received  from  the  War  Department. 

4  Par.  928,  A.  R. 


CHARGES  AND  SPECIFICATIONS.  19 

accompanied  by  tlie  proper  evidence  of  previous  convic- 
tions, when  such  evidence  is  admissible. ' 

4.  Cliarges  against  an  enlisted  man  forwarded  to  the 
authority  competent  to  order  a  general  court-martial  for 
his  trial  Avill  also  be  accompanied  by  a  statement  of  serv- 
ice -  in  accordance  with  the  form  given  on  page  118,  infra. 

In  case  of  a  deserter  the  surgeon's  report  required  by 
par  121,  A.  K.,  will  also  be  forwarded.^ 

Sec.  V.  After  charges  have  been  formally  referred  by 
competent  authority  to  a  court-martial  for  trial,  the  court 
is  not  authorized,  in  its  discretion  and  upon  its  own 
motion,  to  strike  out  a  charge  or  specification,  or  to 
direct  or  permit  the  judge-advocate  to  drop,  or  withdraw, 
such  charge  or  specification,  or  to  enter  a  nolle  prosequi  as 
to  the  same.  For  such  action  the  authority  of  the  con- 
vening officer  is  requisite.     Where,  however,  by  a  special 

■'  Pitr.  929,  A.  R.  (a)  All  charges  for  offenses  coguizable  by  iuferior 
courts-martial  must  bo  accompanied  by  evidence  of  all  previous  con- 
victions of  the  soldier  during  his  current  enlistment  and  within 
eighteen  months  preceding  trial.  When  such  charges  are  referred  to 
a  summary  court,  reference  to  previous  convictions  by  the  same  court 
will  bo  made  on  them,  and  certified  copies  of  orders  publishing  con- 
victions by  other  military  courts  will  be  inclosed.  Evidence  of  con- 
victions by  civil  courts  will  not  be  submitted.  If  the  charges  are 
referred  to  a  garrison  or  regimental  court-martial,  or  are  forwarded 
to  the  authority  competent  to  order  a  general  court,  authenticated 
copies  of  sunmiary  court  records  (see  page  40,  par.  2,  infra)  together 
with  certified  copies  of  orders  publishing  convictions  by  other  mili- 
tary courts,  must  be  inclosed  therewith. 

(&)  Charges  for  offenses  coguizable  only  bj^  general  courts-martial 
((".  e.,  where  the  usual  punishment  for  the  offense  exceeds  that  which 
an  inferior  court  can  inflict),  but  not,  ordinarily,  punishable  by  dis- 
honorable discharge,  should  not  be  accompanied  by  evidence  of  pre- 
vious convictions,  unless  the  soldier  has  been  tried  five  or  more  times 
within  the  preceding  eighteen  months  of  his  current  enlistment,  in 
which  case  evidence  must  be  forwarded. 

(c)  Charges  for  offenses  ordinarily  punishable  by  dishonorable  dis- 
charge «/toi/Zrf  not  be  accompanied  by  evidence  of  previous  convictions, 
except  in  case  of  desertion,  in  which  case  evidence  of  previous  con- 
victions of  desertion  must  be  submitted. 

2  See  page  GG,  par.  5,  infra. 

3  For  form,  see  page  118,  infra. 


20  MANUAL   FOR   COURTS-MARTIAL. 

plea  or  objection,  an  issue  is  made  by  the  accused  as  to 
the  sufficiency  of  any  charge  and  specification,  the  court, 
without  referring  the  question  to  the  convening  officer, 
is  empowered  to  sustain  the  plea  or  objection,  and  quash 
or  strike  out  the  charge. 

ADDITIONAL    CHARGES.  (W^^tirrf  ^-^l  ^  ^* 

1.  After  the  accused  has  been  arraigned  upon  certain 
charges,  has  pleaded  thereto,  and  the  trial  on  the  same 
has  been  entered  upon,  new  and  additional  charges,  which 
the  accused  has  had  no  notice  to  defend,  can  not  bo  intro- 
dnce(J  or  the  accused  required  to  plead  thereto.  Such 
charges  should  be  made  the  subject  of  a  separate  trial, 
upon  which  the  accused  may  be  enabled  properly  to  exer- 
cise the  right  of  challenge  to  the  members  of  the  court 
and  effectively  to  plead  and  defend. 

ORGANIZATION. 

1.  The  authority  appointing  a  court-martial  designates 
the  place  for  holding  the  court,  the  hour  of  meeting,  the 
members  of  the  court,  and  a  judge-advocate.' 

2.  Courts  will  be  assembled  at  posts  or  stations  where 
trial  or  examination  will  be  attended  with  the  least 
expense.  They  will,  as  far  as  practicable,  hold  their  ses- 
sions so  as  to  interfere  least  with  ordinary  routine  duties. 
When  necessary  for  the  sake  of  immediate  example,  a 
court  may  be  ordered  to  sit  Avithout  regard  to  hours.- 

3.  A  general  court-martial  assembles,  at  its  first  session, 
in  accordance  with  the  order  conveniug  it;  thereafter, 
according  to  adjournment.  The  members  wear  full-dress 
uniform  with  their  swords,  except  in  inclement  weather, 
when  the  president  of  the  court  may  authorize  undress 
uniforms ;  the  judge-advocate  appears  in  undress  uniform 
without  the  sword;  the  accused,  if  an  officer  or  non- 
commissioned officer,  appears  in  full  dress,  if  a  private 

»  Pars.  017  and  918,  A.  R.  «  Hj.^  gig. 


THE  MEMBERS.  21 

in  undress,  and  is  without  arms  in  any  case.  Military 
witnesses  wear  full  dress,  witli  their  swords  or  side  arms. 
The  accused  should  not  be  brought  before  the  court  in 
irons,  unless  there  are  good  reasons  to  ])elieve  that  he  will 
attempt  to  escape  or  conduct  himself  in  a  violent  man- 
ner; but  the  fact  that  a  prisoner  has  been  tried  in  irons 
can  not,  in  any  case,  affect  the  validity  of  the  proceed- 
ings. 

4.  When  the  court  is  ready  to  proceed,  the  members 
take  seats  at  a  table  provided  for  their  use ;  the  president 
sits  at  tbe  head  of  the  table  and  the  other  members  at  his 
right  and  left  alternately,  according  to  rank.  The  judge- 
advocate  sits  at  the  foot  of  the  table ;  the  accused  and 
his  counsel  at  a  table  provided  for  them  and  placed  in  a 
convenient  position ;  a  witness,  when  testifying,  is  seated 
near  the  judge-advocate,  and  the  reporter  at  a  table 
l)laced  near  the  witness'  chair. 

5.  The  order  of  procedure  is  given  in  detail  in  the 
**  Form  for  record  of  a  general  court-martial,"  page  119  in- 
fra. During  the  rending  of  the  order  convening  the  court 
and  the  arraignment,  the  judge-advocate  and  the  accused 
should  stand;  while  the  court  and  the  judge-advocate 
are  being  sworn,  all  stand;  when  a  reporter,  an  inter- 
preter, or  a  witness  is  being  sworn,  he  and  tbe  judge- 
advocate  should  stand;  and  when  the  judge-advocate, 
the  accused,  or  his  counsel  addresses  the  court,  he  should 
rise. 

6.  The  organization  of  the  court  is  complete  on  the 
swearing  in  of  the  members  and  the  judge-advocate. 

THE  MEMBERS. 

1.  Members  of  a  court-martial  will  be  named  in  the 
order  appointing  it,  in  accordance  with  their  rank.  They 
will  sit  according  to  rank  as  announced,  and  ^iH  ^'behave 
with  decency  and  calmness."  ^  A  court-martial  has  no 
power  to  punish  its  members,  but  a  member  is  liable  for 


Par.  917,  A.  K.,  and  the  87th  A.  W. 


22  MANUAL   FOR   COURTS-MARTIAL. 

improper  conduct  as  for  any  other  offense  against  military 
discix)line.  Im])rox)er  words  used  by  a  member  should  bo 
taken  down  in  writing,  and  any  disorderly  conduct  re- 
ported to  the  appointing  authority.^ 

2.  ''Members  of  a  court-martial,  in  giving  their  votes, 
shall  begin  with  the  youngest  in  commission."  ^  In  all 
deliberations,  the  law  secures  the  equality  of  the  mem- 
bers. 

3.  When  a  member  is  prevented  from  attending  a  ses- 
sion of  the  court,  he  will  communicate  the  cause  to  the 
judge-advocate,  so  that  the  same  may  be  entered  in  the 
record  of  proceedings. 

4.  A  member  stationed  at  the  place  where  a  court- 
martial  sits  is  liable  to  duty  with  his  command  during 
adjournment  of  the  court  from  day  to  day."' 

THE  PRESIDENT. 

1.  "A  president  of  the  court  will  not  be  announced. 
The  officer  highest  in  rank  present  will  act  as  president."  ^ 
Besides  his  duties  and  privileges  as  a  member,  the  presi- 
dent is  the  organ  of  the  court  to  maintain  order  and  conduct 
its  business.  He  speaks  and  acts  for  the  court  in  every 
instance  where  a  rule  of  action  has  been  prescribed  by 
law,  regulations,  or  its  own  resolution.  He  administers 
the  oath  to  the  judge-advocate,  and  authenticates  by  his 
signature  all  acts,  orders,  and  proceedings  of  the  court 
requiring  it. 

THE  JUDGE-ADVOCATE. 

1.  ''The  judge-advocate  *  *  shall  prosecute  in  the 
name  of  the  United  States,  but  when  the  jirisouer  has 
made  his  plea,  he  shall  so  far  consider  himself  counsel 

1  Par.  920,  A.  R. 

2  95th  A.  W. '  In  case  of  a  tie  vote  on  the  findings  or  sentence  the  ac- 
cused is  given  the  henefit  of  it;  but  when  there  is  a  tie  on  an  objec- 
tion or  motion  made  by  him  it  is  not  decided  in  his  favor. 

3  lb.,  918. 

4  lb.,  919. 


THE   JUDGE-ADVOCATE.  23 

for  the  prisoner  as  to  object  to  any  leading  question  to 
any  of  the  witnesses,  and  to  any  question  to  the  pris- 
oner, the  answer  to  wliich  might  tend  to  criminate  him 
self."  1 

2.  Before  the  court  assembles,  the  judge-advocate  should 
note  and  report  any  irregularity  in  the  order  convening 
the  court,  and  see  that  the  charges  are  technically  and 
correctly  drawn.  He  may  ordinarily  correct  obvious  mis- 
takes of  form,  or  slight  errors  in  name,  dates,  amounts, 
etc.,  but  he  should  not,  without  the  authority  of  the 
convening  officer,  make  substantial  amendments  in  the 
allegations,  or — least  of  all — reject  or  withdraw  a  charge 
or  specification,  or  enter  a  nolle  prosequi  as  to  the  same, 
or  substitute  a  new  and  distinct  charge  for  one  trans- 
mitted to  him  for  trial. 

3.  The  judge-advocate  should  acquaint  the  prisoner 
with  the  accusations  against  him,  inform  him  of  his  right 
to  have  counsel,-  and  to  testify  in  his  own  behalf,^  and 
furnish  him  with  a  copy  of  the  charges,  if  desired.  He 
may  ask  a  prisoner  how  he  intends  to  plead,  but,  when 
the  accused  is  an  enlisted  man,  he  should  in  no  case  try 
to  induce  him  to  plead  guilty,  or  leave  him  to  infer  that, 
if  he  does  so,  his  punishment  will  be  lighter.  When, 
however,  such  a  plea  is  voluntarily  and  intelligently 
made,  the  judge-advocate  should  properly  advise  the  pris- 
oner of  his  right  to  offer  evidence  in  explanation  of  his 
offense,  and,  if  any  such  evidence  exists,  should  assist 
him  m  securing  and  presenting  it. 

4.  The  judge-advocate  should  also,  before  the  court 
assembles,  obtain  a  suitable  room  for  the  court,  see  that  it 
is  in  order,  procure  the  requisite  stationery,  summon  nec- 
essary witnesses,^  make  a  preliminary  examination  of  the 
latter,  and  as  far  as  possible  systematize  his  plans  for 
conducting  the  case. 

5.  During  the  trial  the  judge-advocate  conducts  the  case 
for  the  Government.     He  executes  all  orders  of  the  court; 

'  90th  A.  "W.  3  See  page  40,  par.  2,  infra. 

2  See  page  25,  infra.  '•See  page  32,  infra. 


24  MANUAL  FOB   COURTS-MARTIAL. 

reads  the  convening  order  to  the  accused ;  swears  the  mem- 
bers of  the  court,  the  reporter,  interpreter,  aud  all  wit- 
uesses;  arraigns  the  accused;  examines  witnesses ;  keeps, 
or  superintends  the  keeping  of,  a  complete  and  accurate 
record  of  the  proceedings,^  and  affixes  his  signature  to 
each  day's  proceedings.'^  In  conjunction  with  the  presi- 
dent of  the  court  he  authenticates  the  record  by  his  sig- 
nature,- and  at  the  end  of  the  trial  transmits  the  same  to 
the  convening  authority."^ 

6.  While  the  court  is  in  open  session  the  judge-advo- 
cate should  respectfully  call  the  attention  of  the  court  to 
any  illegalities  in  its  action,  and  to  any  irregularities  in  its 
I)roceeding8.  He  should  act  as  legal  adviser  of  the  court 
so  far  as  to  give  his  opinion  upon  any  point  of  law  arising 
during  the  trial,  when  it  is  asked  for  by  the  court,  but 
not  otherwise. 

7.  When  a  court  sits  in  closed  session  the  judge  advocate 
will  withdraw,  and  when  his  legal  advice  or  assistance 
is  required,  it  will  be  obtained  in  open  court, ^ 

8.  Throughout  the  trial  the  judge- advocate  should  do 
his  utmost  to  present  the  whole  truth  of  the  matter  in 
question.  He  should  oppose  every  attempt  to  suppress 
facts  or  to  torture  them  into  false  shapes,  to  the  end  that 
the  evidence  may  so  exhibit  the  case  that  the  court  may 
render  impartial  justice. 

9.  The  j  udge-advocate  should  regard  his  duty  toward 
the  accused  as  not  strictly  limited  by  the  90th  Article  of 
War,  and  when  the  latter  is  ignorant  and  without  coun- 
sel the  judge-advocate  should  take  care  that  he  does  not 
suffer  upon  the  trial  from  any  ignorance  or  misconception 
of  his  legal  rights,  and  has  full  opportunity  to  interj^ose 
such  pleas  and  make  such  defense  as  may  best  bring  out 
the  facts,  the  merits,  or  the  extenuating  circumstances 
of  his  case. 

iFor  form  for  record,  see  page  119,  infra. 
2Par.  954,  A.  R. 

3  lb.,  955.     The  proceedings  of  all  courts  appointed  by  the  President 
will  be  sent  direct  to  the  Secretary  of  War.     (Par.  892,  A.  E.) 
<>  Par.  921,  A.  E. 


COUNSEL— REPORTER.  25 

10.  Whenever  the  court  adjourns  to  meet  at  the  call  of 
the  i^resideut,  the  judge-advocate  will  notify  the  members 
of  the  time  designated  by  the  president  for  reassembling. 

COUNSEL. 

1.  The  commanding  ofi&cer  of  a  post  where  a  general 
court-martial  is  convened  will,  at  the  request  of  any  pris- 
oner who  is  to  be  arraigned,  detail  a  suitable  officer  as 
counsel  for  the  defense.  Officers  directly  responsible  for 
the  discipline  of  organizations  serving  at  the  i^ost  and 
the  trial  officer  of  the  summary  court  are  not  eligible 
for  tliis  duty.  If  there  be  no  such  officer  available  for 
detail,  the  fact  will  be  reported  to  the  authority  appoint- 
ing the  court  for  his  action.' 

2.  An  officer  detailed  as  counsel  for  a  soldier  before  a 
general  court-martial  should  guard  the  interests  of  the 
accused  by  all  honorable  and  legitimate  means  known  to 
the  law.'  He  should  not  obstruct  the  proceedings  with 
frivolous  or  manifestly  useless  objections. 

3.  If  the  judge-advocate  keeps  the  record  in  long-hand, 
the  counsel  will  be  required  to  reduce  his  questions  and 
arguments  to  writing;  but  if  the  court  has  a  short-Jiand 
reporter,  the  counsel  will  be  allowed  to  question  wit- 
nesses and  address  the  court  orally. 

REPORTER. 

1.  "The  employment  of  a  stenographic  reporter, under 
section  1203,  Revised  Statutes,  is  authorized  for  general 
courts  only,  and  in  cases  where  the  convening  authority 
considers  it  necessary.  The  convening  authority  may 
also,  when  necessary,  authorize  the  detail  of  an  enlisted 
man  to  assist  the  judge-advocate  of  a  general  court  in 
preparing  the  record." ^ 

'  Par.  926,  A.  R.    This  privilege  of  being  represented  by  counsel 
does  not  apply  to  cases  before  inferior  courts. 
2  Par.  926,  A.  R. 
» lb.  958. 

4644 2 


26  MANUAL  FOR  COURTS-MARTIAL. 

2.  When  a  stenographic  reporter  is  employed  under 
section  1203,  Revised  Statutes,  ho  will  be  paid  not  to  exceed 
$10  a  day  during  the  whole  period  of  absence  from  his 
residence,  traveling  or  on  duty.  This  will  be  in  full  for 
taking  and  transcribing  all  notes,  making  such  number  of 
copies  to  be  made  at  one  writing  as  the  judge-advocate 
may  require,  and,  unless  otherwise  specially  ordered  by 
the  Secretary  of  War,  in  full  for  all  services  rendered  and 
expenses  incurred  by  the  reporter. ^ 

3.  ''In  special  cases,  when  authorized  by  the  Secretary 
of  War,  stenographic  reporters  may  be  employed  at  rates 
not  exceeding  25  cents  per  folio  (one  hundred  words)  for 
taking  and  transcribing  the  notes  in  shorthand,  or  10 
cents  per  folio  for  other  notes,  exhibits,  and  appendices."  ^ 

4.  "Reporters  will  be  paid  by  the  Pay  Department,  on 
the  certificate  of  the  judge-advocate."^ 

5.  ''No  person  in  the  military  or  civil  service  of  the 
Government  can  lawfully  receive  extra  compensation  for 
clerical  duties  performed  for  a  military  court."  ^ 

INTERPRETER. 

1.  "  Interpreters  to  courts-martial  are  paid  by  the  Pay 
Department  upon  the  certificate  of  the  judge-advocate 
that  they  were  employed  by  order  of  the  court.  They 
will  be  allowed  the  pay  and  allowances  of  civilian  wit- 
nesses." ^ 

CHALLENGE. 

1.  "Members  of  a  court-martial  may  be  challenged  by 
a  prisoner,  but  only  for  cause  stated  to  the  court.  The 
court  shall  determine  the  relevancy  and  validity  thereof, 
and  shall  not  receive  a  challenge  to  more  than  one  mem- 
ber at  a  time."  ^ 

1  Par.  959,  A.  R. 

2  lb.,  960. 

3  lb.  961,    As  to  pay,  etc.,  of  civilian  witness,  see  page  38,  infra. 

4  88th  A.  W.  This  Article  of  War  authorizes  the  exercise  of  the 
right  of  challenge  before  all  courts  except  fleld-officera'  courts  an^ 
summary  courts. 


CHALLENGE — OATHS.  27 

2.  A  positive  declaration  by  the  challenged  member 
that  he  is  not  prejudiced  against  the  accused,  nor  inter- 
ested in  the  case,  will  ordinarily  satisfy  the  accused,  and, 
in  the  absence  of  material  evidence  in  support  of  the 
objection,  will  justify  the  conrt  in  overruling  it.  If, 
however,  the  statement  is  unsatisfactory,  or  the  member 
makes  no  response,  the  accused  may  offer  testimony  in 
support  of  his  objection  or  may  subject  the  challenged 
member  to  an  examination  by  interrogatories  in  the  same 
manner  that  a  juror  is  examined  in  criminal  courts.  If 
the  accused  desires  that  the  challenged  member  be  put 
on  his  voir  dircy  the  judge-advocate  will  administer  the 
oath  before  the  court  is  sworn. 

3.  Courts  should  be  liheral  in  passing  upon  challenges, 
but  they  will  not  entertain  an  objection  that  is  not  spe- 
cific, nor  one  upon  the  mere  assertion  of  the  accused,  if 
it  is  not  admitted  by  the  challenged  member.  A  chal- 
lenge alleging  that  a  member  is  the  author  of  the  charges 
and  a  material  witness  is  suflQcient  ground  to  justify 
the  court  in  sustaining  it. 

4.  The  court  of  itself  can  not  excuse  a  member  in  the 
absence  of  a  challenge.  A  member,  not  challenged,  who 
thinks  himself  disqualified,  can  only  bo  relieved  by  ap- 
plication to  the  convening  authority. 

5.  The  judge-advocate  is  not  challengeable;  but  incase 
of  personal  interest  in  the  trial  he  should  apply  to  the 
convening  authority  to  be  relieved. 

OATHS. 

1.  Of  Members.— The  judge-advocate  shall  administer 
to  each  member  of  the  court,  before  proceeding  upon 
any  trial,  the  following  oath,  which  shall  also  be  taken 
by  all  members  of  regimental  and  garrison  courts-mar- 
tial : ' 

'^  You,  A  B,  do  swear  that  you  will  well  and  truly  try 
and  determine,  according  to  evidence,  the  matter  now  be- 

'  Whenever  the  same  court-martial  tries  more  than  one  prisoner  on 
separate  and  distinct  charges,  the  court  will  he  sworn  at  the  com- 
mencement of  each  trial 


28  MANUAL  FOR   COURTS-MARTIAL. 

fore  you,  between  the  United  States  of  America  and  the 
prisoner  to  he  tried,  and  that  you  will  duly  administer 
justice,  without  partiality,  favor,  or  affection,  according 
to  the  provisions  of  the  rules  and  articles  for  the  govern- 
ment of  the  armies  of  the  United  States,  and  if  any  doubt 
should  arise,  not  explained  by  said  articles,  then  accord- 
ing to  your  conscience,  the  best  of  your  understanding, 
and  the  custom  of  war  in  like  cases;  and  you  do  further 
swear  that  you  will  not  divulge  the  sentence  of  the  court 
until  it  shall  be  published  by  the  proper  authority,  except 
to  the  judge-advocate;  neither  will  you  disclose  or  dis- 
cover the  vote  or  opinion  of  any  particular  member  of  the 
court-martial,  unless  required  to  give  evidence  thereof,  as 
a  witness,  by  a  court  of  justice,  in  a  due  course  of  law. 
So  help  you  God."  i 

2.  Of  the  Judge-Advocate. — When  the  oath  has  been 
administered  to  the  members  of  a  court-martial,  the  presi- 
dent of  the  court  shall  administer  to  the  judge-advocate, 
or  person  officiating  as  such,  an  oath  in  the  following 
form :  ^ 

''You,  A  B,  do  swear  that  you  will  not  disclose  or  dis- 
cover the  vote  or  opinion  of  smy  particular  member  of  the 
court-martial,  unless  required  to  give  evidence  thereof, 
as  a  witness,  by  a  court  of  justice,  in  due  course  of  law; 
nor  divulge  the  sentence  of  the  court  to  any  but  the 
proper  authority,  until  it  shall  be  duly  disclosed  by  the 
same.     So  help  you  God."'^ 

3.  Of  Witness. — Ail  persons  who  give  evidence  before 
a  court-martial  shall  be  examined  on  oath,  or  affirmation, 
in  the  followiug  form: 

"  You  swear  (or  affirm)  that  the  evidence  you  shall  give, 
in  the  case  now  in  hearing,  shall  be  the  truth,  the  whole 
truth,  and  nothing  but  the  truth.      So  help  you  God."^ 


1 84tli  A.  W.,  as  amended  by  the  act  of  July  27, 1892 ;  see  G.  0. 57,  A. 
G.  0.:1892. 

^  During  tlie administration  of  tiie  oaths  to  the  court  and  the  judge- 
advocate,  all  members  of  the  court,  the  judge-advocate,  and  the 
accused  stand. 

3  85th  A.  W. 

492dA.  W. 


POSTPONEMENT.  29 

4.  Of  Reporter. — ''You  swear  that  you  will  faithfully 
perform  the  duties  of  reporter  to  this  court.  So  help  you 
God."' 

5.  Of  Interpreter. — "  You  swear  that  you  will  truly 
interpret  in  the  case  now  iu  hearing.     So  help  you  God." 

6.  Voir  Dire. — ''  You  swear  that  you  will  true  answers 
make  to  questions  touching  your  competency  as  a  mem- 
ber (or  witness)  in  this  case.     So  help  you  God." 

7.  .Judge-advocates  of  dei^artments  and  of  courts-mar- 
tial, and  the  trial  officers  of  summary  courts,  are  author- 
ized to  administer  oaths  for  the  purposes  of  military  jus- 
tice, and  for  other  purposes  of  military  administration.^ 

POSTPONEMENT. 

1.  If  postponement  is  necessary,  application  therefor 
should  properly  be  made  to  the  convening  authority 
before  the  accused  is  arraigned.  The  court  may,  "for 
reasonable  cause,  graut  a  continuance  to  either  party,  for 
such  time,  and  as  often  as  may  appear  to  be  just:  Pro- 
vided, That  if  the  prisoner  be  in  close  confinement,  the  trial 
shall  not  be  delayed  for  a  period  longer  than  sixty  days.""* 

2.  Upon  application  by  the  accused  for  postponement 
of  trial  because  of  the  absence  of  a  witness,  it  should 
distinctly  appear,  on  his  oath,  that  the  witness  is  material, 
and  why,  and  that  the  accused  has  used  due  diligence  to 
procure  his  attendance,  and  has  reasonable  ground  to 
believe,and  does  believe,  that  he  will  be  able  to  procure 
such  attendance  within  a  reasonable  time  stated. 

3.  Application  for  extended  delay  will,  when  practicable, 
be  made  to  the  authority  appointing  the  court.  When 
made  to  the  court,  and  if,  in  the  opinion  of  the  court,  it  is 
well  founded,  it  will  be  referred  to  the  convening  authority 
to  decide  whether  the  court  shall  be  adjourned  or  dis- 
solved. 

'  The  reporter  must  be  sworn  in  each  case. 

*  Act  of  July  27,  1892;  see  G.  O.  57,  A.  G.  O.,  1892. 

«93d  A.  W. 


30  MANUAL  FOR   COURTS-MARTIAL. 


ARRAIGNMENT. 

1.  The  court  being  organized,  and  both  parties  ready  to 
proceed,  the  judge-advocate  will  read  the  charges  and 
specifications,  separately  and  in  order,  to  the  accused, 
and  ask  him  how  he  pleads  to  each — '^guilty,"  or  "not 
guilty."  The  order  pursued,  in  case  of  several  charges  or 
specilications,  will  be  to  arraign  on  the  first,  second,  etc., 
specifications  to  the  first  charge,  then  on  the  first  charge, 
and  so  on  with  the  rest.^ 

PLEAS. 

1.  Ordinarily  the  plea  of  the  accused  is  "guilty"  or 
"not  guilty  "  to  each  charge  and  specification;  or,  guilty 
of  a  specification  excepting  certain  words,  and  of  the 
excepted  words  not  guilty ;  or,  as  when  charged  with  an 
offense  which  includes  a  lesser  one  of  kindred  degree, 
guilty  to  the  specification  except  certain  words,  substi- 
tuting therefor  certain  others,  and  to  the  charge  not 
guilty,  but  guilty  of  the  lesser  kindred  offeuse.- 

2.  A  plea  of  guilty  does  not  necessarily  exclude  evi- 
dence. In  cases  of  discretionary  punishment  ^  a  full 
knowledge  of  the  circumstances  attending  the  offense  is 
essential  to  the  court  in  measuring  the  punishment  and 
to  the  convening  authority  in  acting  on  the  sentence.  It 
is,  therefore,  proper  for  the  court  to  take  evidence  after  a 
plea  of  guilty,  except  when  the  specification  is  so  descrip- 
tive as  to  disclose  all  the  circumstances  of  mitigation  or 
aggravation. 

3.  When  the  punishment  is  fixed,  such  full  knowledge 
of  the  attendant  circumstances  is  still  more  important  to 
the  reviewing  authority,  in  order  that  he  may  be  able  to 
comprehend  the  entire  case  and  correctly  judge  whether 
the  sentence  should  be  approved  or  disapproved.     It  is 

1  During  the  arraignment  the  judge-advocate  and  the  accused 
stand. 

2  See  page  47,  par.  3,  infra. 
8  See  page  50,  infra. 


PLEAS.  31 

especially  necessary  in  capital  cases  that  all  the  facts  of 
the  case  be  exhibited  in  evidence. 

4.  In  practice,  the  absence  of  evidence  to  illustrate  the 
offense  has  been  found  particularly  embarrassing  incases 
of  desertion.  In  a  majority  of  cases  in  which  the  plea  is 
"guilty,"  the  record  is  found  to  contain  no  testimony 
whatever;  and  a  full  and  intelligent  comprehension  of 
the  nature  of  the  offense  is  thus,  in  many  instances,  not 
attainable. 

5.  When  testimony  is  heard  after  a  plea  of  "  guilty," 
the  accused  may  cross-examine  the  witnesses,  produce 
evidence  to  rebut  their  testimony,  off"er  evidence  as  to 
character,  and  address  the  court  in  extenuation  of  the 
offense  or  in  mitigation  of  punishment. 

6.  When  the  accused  pleads  '^ guilty,"  and  without  any 
evidence  being  introduced  makes  a  statement  inconsist- 
ent with  his  plea,  the  statement  and  plea  will  be  consid- 
ered together,  and  if  guilt  is  not  conclusively  admitted, 
the  court  will  direct  the  entry  of  a  plea  of  "not  guilty," 
and  proceed  to  try  the  case  on  the  general  issue  thus 
made. 

7.  If  the  prisoner,  from  obstinacy  or  deliberate  design, 
stands  mute,  or  answers  foreign  to  the  pur^jose,  the  court 
will  proceed  to  trial  and  judgment  as  if  the  prisoner  had 
pleaded  "not  guilty."  ^ 

8.  Instead  of  pleading  to  the  general  issue,  the  accused 
may  plead  in  bar  of  trial,-  either  to  the  jurisdiction,  by 
denying  the  legal  right  of  the  court  to  try  him,  or  he  may 
make  a  special  plea  to  any  specification,  presenting  rea- 
sons why  he  should  not  be  tried  on  it.  Such  a  plea  in 
bar  and  any  argument  in  its  favor  should  be  signed  by 
the  accused,  appended  to  the  record,  and  referred  to  as 
having  been  submitted  by  him.  The  burden  of  substan- 
tiating such  pleas  rests  on  the  accused.  Both  sides  should 
be  heard,  and  the  proceedings  under  the  plea  recorded. 

>  89tli  A.  W. 

2  As  to  plea  of  autrefois  acquit  in  a  case  involving  both  a  civil  and 
a  militarj'  offense,  see  Digest,  Opin.  J.  A.  G.,  pp.  119  and  328. 


32  MANUAL   FOR   COURTS-MARTIAL. 

If  the  plea  in  bar  of  trial  be  fouud  valid,  the  court  will 
report  its  decision  to  the  convening  authority  and  await 
further  instructions;  if,  by  the  siiecial  plea,  an  issue  is 
made,  the  court  is  empowered  to  sustain  or  overrule  the 
plea;'  when  a  special  plea  is  made  and  overruled,  the 
accused  will  be  required  to  plead  to  the  general  issue. 

9.  A  second  enlistment  in  the  service  of  the  United 
States,  when  the  first  has  not  been  fulfilled,  is  not  void, 
but  voidable  at  the  option  of  the  United  States  only;  so 
that  a  man  who,  whilst  serving  under  such  a  second  enlist- 
ment, commits  an  ofi'ense,  can  not  successfully  plead  the 
fraudulent  character  of  his  second  enlistment  in  bar  of 
trial.  Paragraph  134  of  the  Regulations  relates  to  soldiers 
not  charged  with  crime  who  are  discovered  to  be  deserters 
from  the  Navy  or  Marine  Corps,  and  does  not  interpose 
any  obstacle  to  trial  by  court-martial  for  oft'enses  com- 
mitted while  in  the  military  service. 

10.  The  statute  of  Imitation  (103d  A.  W.)  is  not  prohib- 
itory as  to  jurisdiction, 2  but  properly  a  matter  of  defense, 
which  to  become  eftective  should  be  pleaded  and  proved. 
By  pleading  to  the  general  issue  the  accused  waives  his 
right  to  i)Uad  the  limitation,  but  the  limitation  may  still 
be  taken  advantage  of  by  evidence  showing  that  it  has 
taken  eifect. 

ATTENDANCE  OF  WITNESSES. 

Sec.  I.  ''  The  judge-advocate  will  summon  the  necessary 
witnesses  for  the  trial,  but  will  not  summon  witnesses  at 
the  expense  of  the  Government  without  the  order  of  the 
court  unless  satisfied  that  their  testimony  is  material  and 
necessary."  He  '^  will,  whenever  it  is  possible,  send  sub- 
poenas through  military  channels." ^ 

2.  The  accused  is,  in  general,  entitled  to  have  all  the 
material  witnesses  for  his  defense  summoned;  except 
when  their  testimony  would  be  merely  cumulative,  and 

'  See  page  19,  Sec.  V,  supra ;  also,  page  127,  note  2,  infra. 

2  See  authorities  cited  iu  note  5,  page  124,  Digest,  Opin.  J.  A.  G. 

3  Pars.  922  and  924,  A.  li. 


ATTENDANCE  OF  WITNESSES.  33 

evidently  add  nothing  to  the  strength  of  his  cas3«  As  far 
as  possible,  he  should  be  allowed  a  full  and  free  uefense, 
as  the  least  denial  to  him  of  any  proper  facility,  oppor- 
tunity, or  latitude  for  it  may  serve  to  defeat  the  ends  of 
justice. 

Sec.  II:  To  procure  the  attendance  of  witnesses  stationed 
or  residing  within  the  State,  Territory,  or  District  in  which 
the  court  is  ordered  to  sit,  the  judge-advocate  icill  proceed 
as  follows : 

1.  If  the  desired  witness  is  a  military  pei'son,  stationed 
or  residing  at  or  near  the  place  where  the  court  is  in  ses- 
sion, the  judge-advocate  will  notify  him  verbally,  or  by  a 
note,  that  he  is  wanted  as  a  witness;  if  he  is  stationed  or 
resides  so  far  from  where  the  court  sits  that  travel  is 
necessary,  the  judge-advocate  will  send  him  a  summons^ 
through  the  authority  competent  to  order  the  travel. 

2.  If  the  desired  witness  is  a  civilian,  living  near  the 
post  where  the  court  is  convened,  duplicate  subpoenas^ 
will  be  prepared,  one  of  which  will  be  served  upon  the 
witness  by  the  judge-advocate  or  by  any  person  instructed 
by  him;  if  the  residence  of  the  witness  wanted  is  not 
near  the  post,  but  still  within  the  State,  etc.,  the  judge- 
advocate  will  send  the  duplicate  subpoenas  to  the  conven- 
ing authority,  requesting  service  of  the  same. 

3.  Service  is  made,  under  court-martial  practice,  by  a 
personal  delivery  of  the  subpcena  to  the  witness;  and 
proof  of  service  by  returning  the  duplicate  original  to  the 
judge-advocate  indorsed  as  explained  i-n  the  form  pub- 
lished on  page  139,  infra.  Any  person  instructed  by  the 
judge-advocate  or  post  commander  may  serve  the  sub- 
poena,^ but  the  service  must  he  personal. 

4.  Should  a  witness  fail  to  appear  after  due  and  reasona- 
ble notice,  the  judge-advocate  has  power  to  issue  the  like 
process  to  compel  him  to  appear  and  testify  which  courts 
of  criminal  jurisdiction  within  the  State,  Territory,  or 
District  where  such  court  is  convened  may  lawfully  issue.  * 

1  For  form,  see  page  138,  infra.  ^  Par.  923,  A  R. 

an,.  *  Sec.  1202,  R.S. 

4644 — '-2* 


34  MANUAL  FOR   COURTS  MARTIAL. 

This  power  also  includes  the  power  to  execute  such  process 
through  an  officer,  who  shall  be  specially  charged  with  its 
execution.  1 

5.  Whenever  it  becomes  necessary  to  enforce  the  at- 
tendance of  a  witness,  the  judge-advocate  will  issue  a 
warrant  of  attachment,'-  directing  and  delivering  it  for 
execution  to  an  officer  designated  by  the  department 
commander  for  the  purpose.  He  will  also  deliver  to  this 
officer  the  subpoena,  indorsed  with  affidavit  of  service, 
(to  be  returned  when  the  warrant  is  executed )j  and  a  cer- 
tified copy  of  the  order  appointing  the  court-martial. ^ 

6.  In  executing  such  process,  it  is  lawful  to  use  only 
such  force  as  may  be  necessary  to  bring  the  witness  be- 
fore the  court.  Whenever  force  is  actually  required,  the 
post  commander,  nearest  witness'  residence,  will  furnish 
a  military  detail  sufficient  to  execute  the  process.^ 

7.  If,  in  executing  this  legal  process,  the  officer  de- 
tailed for  that  purpose  should  be  served  with  a  writ  of 
haheas  corpus  from  any  United  States  court,  or  by  a 
United  States  judge,  for  the  production  of  the  witness, 
the  writ  will  be  promptly  obeyed  and  "the  person  al- 
leged to  be  illegally  restrained  of  his  liberty  will  be  taken 
before  the  court  from  which  the  writ  has  issued,  and  a 
return  made  setting  forth  the  reasons  for  his  restraint. 
The  officer  upon  whom  such  a  writ  is  served  will  at  once 
report  the  fact  of  such  service  direct  to  the  Adjutant- 
General  of  the  Army  by  telegraph."  < 

8.  If,  however,  the  writ  of  haheas  corpus  is  issued  by  any 
State  court  (or  a  State  judge)  it  will  be  the  officer's  duty 
to  make  respectful  return,  in  writing,  informing  the 
court  that  he  holds  the  person  named  in  the  writ  by 
authority  of  the  United  States  pursuant  to  a  warrant  of 
attachment  issued  under  Section  1202  of  the  Eevised 
Statutes  of  the  United  States  by  a  judge-advocate  of  a 
lawfully  convened  court-martial,  and  that  the  Supreme 

» 12  Opin.  Att'y  Gen'l,  p.  504. 

2  For  form  see  page  140,  infra. 

"Par.  923,  A.  R. 

*  lb.,  971.    For  general  form  foi*  return,  see  page  148,  infra. 


ATTENDANCE  OF  WITNESSES.  35 

Court  of  the  United  States  has  decided  that  State  courts 
and  judges  are  without  jurisdiction  in  such  cases.' 

9.  After  having  made  the  above  return,  it  is  the  duty 
of  the  officer  to  obey  the  process  of  the  United  States, 
to  hold  the  prisoner  in  custody  under  it,  and  to  refuse 
obedience  to  the  mandate  or  process  of  any  other  govern- 
ment. And,  consequently,  it  is  his  duty  not  to  take  the 
prisoner,  nor  suffer  him  to  be  taken,  before  a  State  judge 
or  court  upon  a  writ  of  habeas  corpus  issued  under  State 
authority.' 

Sec.  III.  To  procure  the  testimony  of  witnesses  stationed  or 
residing  without  the  State,  etc.,  the  folloiving  practice  icill  be 
observed : 

1.  A  court-martial  subpoena  will  run  anywhere,  within 
or  beyond  the  territorial  limits  of  the  United  States,  but 
a  writ  of  attachment  does  not  run  beyond  the  State, 
Territory,  or  District  in  which  the  court-martial  sits. 
The  testimony  of  civilian  witnesses  residing  beyond''  such 
State,  Territory,  or  District  will  ordinarily  be  taken  by 
deposition  under  the  91st  Article  of  War,  but  this  can 
not  be  done  when  it  is  necessary  that  they  should  be  con- 
fronted with  the  accused.  In  such  cases  their  testimony 
can  only  be  taken  on  their  voluntarily  appearing  before 
the  court. 

The  testimony  of  military  witnesses  stationed  or  resid- 
ing beyond^  the  State,  Territory,  or  District  in  which  the 
court  sits  will  also  ordinarily  be  taken  by  deposition. 

2.  The  method  of  procedure  to  obtain  a  deposition"*  is 
as  follows : 

The  party,  prosecutor  or  defendant,  desiring  the  deposi- 
tion, submits  to  the  court  a  list  of  interrogatories  to  be 
propounded  to  the  absent  witness;  the  opposite  party 
then  prepares  and  submits  a  list  of  cross-interrogatories, 
a  reasonable  time  being  allowed  for  this  purpose;  redirect 
and  recross-interrogatories  are  added,  if  desired;  finally 
the  court,  having  assented  to  the  interrogatories  thus  sub- 

1  Pars.  969  and  970,  A,  R.    For  form  for  return,  see  page  146,  infra. 

2  See  21  Howard,  p.  517. 

3  See  page  141,  note  1,  infra. 

*  For  form,  see  page  141,  infra. 


36  MANUAL  FOR   COURTS-MARTIAL. 

mitted,  adds  such  as,  in  its  judgment,  may  be  necessary 
to  elucidate  the  whole  of  the  witness'  testimony. 

The  interrogatories  having  been  accepted  by  the  court, 
the  judge  advocate  will  prepare  dujilicate  subpoenas ^ 
requiring  the  witness  to  appear  in  person,  at  a  time  and 
place  to  be  fixed  by  the  officer,  military  or  civil,  who  is 
to  take  the  deposition.  If  the  name  of  this  officer  is  not 
known,  the  space  for  it  will  be  left  blank. 

The  judge-advocate  will  then  send  the  interrogatories 
and  subpoenas  to  the  convening  authority,  with  a  request 
that  the  deposition  be  secured. 

Depositions  may  also  be  taken  before  the  assembling  of 
the  court-martial,  on  interrogatories  and  cross-interroga- 
tories or  reasonable  notice,  subject  to  exceptions  when 
read  in  court. 

3.  Judge-advocates  of  departments  and  of  courts-mar- 
tial, and  the  trial  officers  of  summary  courts,  are  author- 
ized to  administer  oaths  and  take  depositions. ^  If  none 
of  these  officers  are  available,  any  other  army  officer  may 
be  designated  to  see  that  the  deposition  is  properly  taken ;  ^ 
but  the  oath  in  such  a  case  must  be  administered  and  the 
deposition  authenticated  by  a  civil  officer  empowered  by 
law  to  administer  oaths  for  general  purposes. 

4.  Upon  the  return  of  the  interrogatories  and  deposi- 
tion they  will  be  submitted  to  the  court  by  the  presi- 
dent or  j  udge-advocate.  The  papers  will  then  be  properly 
marked,  appended  to  the  record,  and  referred  to  in  the 
proceedings,  where  all  action  upon  the  subject  necessary 
for  the  information  of  the  reviewing  authority  will  be 
recorded. 

5.  Upon  the  receipt  of  the  deposition,  the  judge-advo- 
cate will  also  prepare  and  sign  the  ordinary ''  accounts  for 

1  For  form,  see  page  138,  infra, 

2  Sec.  4,  act  of  July  27, 1892 ;  see  G.  0.  57,  A.  G.  0. 1892. 

3Ab  officer  so  designated  will,  before  serving  the  subpoena,  com- 
plete it  if  necessary  by  inserting  the  name  and  official  designation  of 
the  notary  (or  other  official  having  authority  to  administer  the  oaths), 
before  wliom  it  is  to  be  taken  and  the  date  on  which  and  place  where 
it  is  proi)osed  to  take  it.  When  the  deposition  bas  been  duly  taken, 
he  will  certify  to  this  fact  and  transmit  it  to  the  president  of  the  court. 


ATTENDANCE  OF  WITNESSES.  37 

a  civilian  witness/' '  substituting  for  the  usual  statement 
in  regard  to  attendance  before  the  court  a  statement 
that  he  duly  attended  as  a  witness  at  a  certain  time  and 
place  and  duly  gave  his  deposition  before  a  certain  official 
named,  and  then  transmit  them  to  the  witness  with 
duplicate  copies  of  the  order  convening  the  court.  The 
pei'iod  of  attendance  can  be  ascertained  from  the  deposition. 

6.  In  cajyital  cases  (i.  e.,  those  in  which  the  oflense  is 
punishable  by  death),  -  or  in  cases  where  the  judge-advo- 
cate can  certify  'Hhat  the  interests  of  justice  demand 
that  the  witness  shall  testify  in  the  presence  of  the 
court,"  the  regular  subpa^nas  will  be  made  out  by  the 
judge-advocate,  certified  to  as  above,  if  necessary,  and 
transmitted  to  the  department  commander,  with  a  request 
that  they  be  duly  forwarded  to  the  witness,  if  an  officer, 
or  to  the  nearest  post  commander  for  service,  if  the  wit- 
ness is  an  enlisted  man  or  a  civilian. 

7.  "An  officer  or  enlisted  man  who  receives  a  summons 
to  attend  as  a  witness  before  any  military  court,  board, 
civil  court,  or  other  tribunal  competent  to  issue  sub- 
poenas, which  is  sitting  beyond  the  limits  of  the  depart- 
ment where  he  is  serving,  will,  before  starting  to  obey 
the  summons,  forward  it  through  the  proper  channel  to 
his  department  commander,  that  necessary  orders,  or  au- 
thority to  obey  a  civil  process,  may  be  given.  In  urgent 
cases,  or  when  the  public  interest  would  bo  liable  to  suf- 
fer by  delay,  a  post  commander  may  authorize  immediate 
departure,  reporting  his  action  and  reasons  therefor  to 
the  department  commander."  » 

8.  Officers  and  enlisted  men  reporting  as  witnesses 
before  a  civil  court  should  receive  from  the  civil  authori- 
ties the  necessary  expenses  incurred  in  travel  and  attend- 
ance. Neither  mileage  nor  travel  allowances  will  be  paid 
in  such  cases  by  the  War  Department.  If,  however,  it  is 
absolutely  necessary  to  furnish  them  transportation  in 

'  For  form  see  page  142,  infra. 

'  In  time  of  jH-ace,  desertion  is  not  a  capital  offense. 

8Par.925,A.R. 


38  MANUAL  FOR  COURTS-MARTIAL. 

kind  to  enable  tliem  to  appear  as  witnesses  for  the  Gov- 
ernment, before  a  civil  court  of  the  United  States,  an 
account  of  such  expenditure,  together  with  the  evidence 
that  they  were  properly  subpoenaed  and  did  attend  the 
court,  will  be  forwarded  to  the  War  Department  for  pres- 
entation to  the  Department  of  Justice.  Ofiicers  provid- 
ing such  transportation  will  notify  the  court,  or  the 
marshal  thereof,  that  it  was  furnished  to  enable  the  wit- 
nesses to  perform  the  requisite  journeys  in  obedience  to 
the  summons.' 

FEES  OF  WITNESSES.2 

1.  A  civilian  witness  before  a  court-martial  is  entitled, 
upon  his  discharge,  to  receive  from  the  judge-advocate 
a  certificate,  setting  forth  the  fact  of  his  having  been 
summoned  as  a  witness  in  the  case,  and  the  number  of 
days  of  his  attendance  in  that  capacity  before  the  cfturt. 
To  entitle  a  witness  to  the  payment  of  fees,  it  is  not 
absolutely  essential  that  he  should  produce  a  formal 
Bubpcena,  addressed  to  and  complied  with  by  him,  or  that 
he  should  have  been  formally  summoned  in  the  case.  A 
strict  observance,  however,  of  Section  I,  page  32,  supra, 
would  require  the  issue  of  formal  subpoenas  to  witnesses 
on  both  sides,  and  it  is  the  best  practice  for  the  judge- 
advocate  to  cause  such  to  be  served  in  each  instance. 

2.  When  a  civilian  witness  refuses  to  testify  in  answer 
to  proper  questions  he  will  not  be  paid  the  fees  and  allow- 
ances of  a  witness. 

3.  ''Civilians  in  the  employ  of  the  Government  when 
traveling  upon  summons  as  witnesses  before  military 
courts  are  entitled  to  transportation  in  kind  from  their 
place  of  residence  to  the  place  where  the  court  is  in  session 
and  return.  If  no  transportation  be  furnished  they  are 
entitled  to  reimbursement  of  the  cost  of  travel  actually 

•Par.  72,  A.  R. 

2When  the  employment  of  experts  is  necessary  in  a  trial  by  court- 
martial,  the  j  udge-advocate  will  apply  to  the  Secretary  of  War  for 
anthoritj-^  to  employ  them  and  for  a  decision  as  to  the  compensation 
to  be  paid  them. 


FEES  OF  WITNESSES.  39 

performed  by  the  shortest  usually  traveled  route,  includ- 
ing transfers  to  and  from  railway  stations,  at  rates  not 
exceeding  50  cents  for  each  transfer,  and  the  cost  of  a 
double  berth  in  a  sleeping  car  or  steamer  when  an  extra 
charge  is  made  therefor.  They  are  also  entitled  to  reim- 
bursement of  the  actual  cost  of  meals  and  rooms  at  a  rate 
not  exceeding  $3  per  day  for  each  day  actually  and  una- 
voidably consumed  in  travel  or  in  attendance  upon  the 
court  under  the  order  or  summons.  No  allowance  will 
be  made  to  them  when  attendance  upon  court  does  not 
require  them  to  leave  their  stations."  ^ 

4.  "A  civilian  not  in  Government  employ  duly  sum- 
moned to  appear  as  a  witness  before  a  military  court  will 
receive  $1.50  for  each  day  actually  and  unavoidably  con- 
sumed in  travel  or  in  attendance  upon  the  court  under 
the  summons,  and  5  cents  a  mile  for  going  from  his  place 
of  residence  to  the  place  of  trial  or  hearing  and  5  cents 
a  mile  for  returning.  Civilian  witnesses  will  be  paid  by 
the  Pay  Department."  ^ 

5.  ''The  charges  for  return  journeys  of  witnesses  will 
be  made  upon  the  basis  of  the  actual  charges  allowed  for 
travel  to  the  court,  and  the  entire  account  thus  com- 
pleted will  be  paid  upon  discharge  from  attendance, 
without  waiting  for  completion  of  return  travel."  =* 

6.  "The  items  of  expenditure  authorized  in  paragraphs 
962  and  963  (Army  Regulations)  will  be  set  forth  in  detail 
and  made  a  part  of  each  voucher  for  reimbursement.  No 
other  items  will  be  allowed.  The  correctness  of  the  items 
will  be  attested  by  the  affidavit  of  the  witness,  to  be 
made  when  practicable  before  the  judge-advocate,  and 
the  voucher  will  be  accompanied  by  the  original  summons 
or  a  duly  certified  copy  thereof.  The  certificate  of  the 
judge-advocate  will  be  evidence  of  the  fact  and  period  of 
attendance,  and  will  be  made  upon  the  voucher."* 

7.  ''Compensation  to  civilians  in  or  out  of  Government 
employ  for  attendance  upon  civil  courts  is  payable  by 
the  civil  authorities."  ^ 

1  Par.  962.  A.  R.  s  ib.,  964.  « lb.,  966. 

» lb.,  963.  « lb.,  965. 


40  MANUAL  FOR   COURTS-MARTIAL. 


COMPETET^^CY  OF  WITNESSES. 

1.  The  question  of  the  competency  of  a  person  to  give 
evidence  is  a  matter  for  the  court  to  decide.  As  a  general 
rule,  all  persons  are  competent  witnesses.  The  exceptions 
to  this  rule  are,  persons  insensible  to  the  obligations  of 
an  oath;  persons  deficient  in  understanding  by  reason  of 
lunacy,  idiocy,  infancy,  or  intoxication;  and  wives  of 
accused  parties,  except  in  case  of  bodily  injury  inflicted 
on  the  wife  by  the  husband.  ^ 

2.  The  act  of  March  16,  1878,  provides,  ''That  in  the 
trial  of  all  indictments,  informations,  complaints  and 
other  proceedings  against  persons  charged  with  the  com- 
mission of  crimes,  olfenses  and  misdemeanors  in  the 
United  States  courts,  Territorial  courts,  and  courts-mar- 
tial, and  courts  of  inquiry,  in  any  State  or  Territory, 
including  the  J3istrict  of  Columbia,  the  person  so  charged 
shall,  at  his  own  request,  but  not  otherwise,  be  a  com- 
petent witness.  And  his  failure  to  make  such  request 
shall  not  create  any  presumption  against  him."  Parties 
testifying  under  this  act  have  no  exceptional  status  or 
privileges;  they  must  take  the  stand  and  be  subject  to 
cross-examination  like  other  witnesses.  The  submission, 
by  the  accused,  of  a  sworn  statement  is  not  a  legitimate 
exercise  of  the  authority  to  testify  conferred  bj^  the 
statute,  and  such  a  statement  will  not  be  admitted  in 
evidence  by  the  court. 

3.  In  regard  to  the  eifect  of  the  above  act  upon  cases 
in  which  husbands  and  wives  may  be  called  upon  to 
testify  against  each  other,  Wharton  states  (Crim.  Ev., 
see.  400) :  ''The  reason  for  the  exclusion  of  husband  and 
wife,  when  called  for  or  against  the  other,  being  social 
policy,  and  not  interest,  statutes  abolishing  incompe- 

'I  Greenleaf,  sees.  326,  367,  and  430.  The  old  common-law  rule  that 
persons  convicted  and  sentenced  for  treason,  felony,  and  crimen  falsi 
are  incompetent  has  been  so  changed  by  practice  in  the  State  and 
United  States  courts  that  such  conviction  Avould  now  probably  be 
held  to  affect  the  credibility  of  the  witness  only.  In  regard  to 
instructing  a  child  as  to  the  nature  of  an  oath,  see  G.  C.  M.  O.,  10,  A. 
G.  O.,  1886. 


EXAMINATION  OF  WITNESSES.  41 

tency  resting  on  interest  do  not  remove  the  common-law 
incompetency  of  husband  and  wife  for  or  against  the 
other." 

EXAMINATION  OF  WITNESSES. 

Sec.  I.  Courts-martial  should  in  general  follow,  so  far 
as  apposite,  the  rules  of  evidence  to  be  found  in  the 
common  law.  They  are  not,  however,  bound  by  any 
statute  in  this  particular,  and  it  is  thus  open  to  them,  in 
the  interests  of  justice,  to  apply  those  rules  with  more 
indulgence  than  the  civil  courts;  e.  g.,  to  allow  more 
latitude  in  the  introduction  of  testimony  and  in  the  ex- 
amination and  cross-examination  of  witnesses  than  is 
commonly  permitted  by  civil  tribunals.  The  reason  for 
this  is  that  persons  on  trial  by  courts-martial  are  not,  or- 
ordinarily,  versed  in  legal  science,  and  a  liberal  course 
should  therefore  be  pursued  and  excessive  technicality 
avoided. 

2.  The  manner  in  which  witnesses  are  to  be  examined 
lies  chiefly  within  the  discretion  of  the  court.  The  great 
object  is  to  elicit  the  truth  from  the  witness;  but  the 
character,  intelligence,  moral  courage,  bias,  memory,  etc., 
of  witnesses  are  so  varied  as  to  require  an  almost  equal 
variety  in  the  manner  of  interrogation  necessary  to  attain 
that  eud.i 

3.  Before  the  examination  of  any  particular  witness  is 
begun,  it  is  customary  for  the  court  to  require  the  others 
to  retire.  If  a  witness  remains  in  court  after  such  a 
request,  by  mistake  or  otherwise,  the  court  will  decide 
whether  or  not  he  shall  be  examined ;  but  whether  or  not 
it  is  essential  to  the  discovery  of  truth  that  the  witnesses 
shall  be  thus  examined  out  of  hearing  of  each  other,  is  a 
matter  within  the  discretion  of  the  court.' 

4.  After  a  military  witness  has  been  sworn,  the  first 
question  put  to  him  will  ordinarily  be  for  the  purpose  of 
determining  his  identification  of  the  accused ;  the  second, 
when  practicable,  should  be  in  such  form  that  the  answer 
may  show  that  the  witness  was  so  placed  as  to  personally 

>I  Greenleaf,  sec.  431. 


42  MANUAL  FOR  COURTS-MARTIAL. 

know  sometliing  about  the  matter  set  forth  in  the  specifi- 
cations ;  while  the  third  and  subsequent  interrogatories 
should  be  such  as  to  elicit  all  the  facts,  whether  they 
consist  of  words  or  actions,  that  may  have  come  within 
the  witness'  personal  knowledge. 

Sec.  II.  Direct  Examination. — Upon  direct  examina- 
tion, leading  questions  are  not  allowed.  This  rule,  how- 
ever, is  to  be  understood  in  a  reasonable  sense;  for, 
otherwise,  the  examinations  might  be  most  inconveniently 
protracted.  To  abridge  the  proceedings,  the  witness  may 
be  led  at  once  to  points  on  which  he  is  to  testify  and  the 
acknowledged  facts  in  the  case  already  established  be 
recapitulated  to  him.  The  rule  is,  therefore,  not  appli- 
cable to  that  part  of  the  examination  which  is  merely 
introductory.' 

2.  Leading  questions  are  those  which  plainly  suggest 
the  answer  desired,  or  those  which,  embodying  a  material 
fact,  admit  of  a  simple  yes  or  no.  The  exceptions  to  the 
above  rule  against  their  admission  are:  1st,  when  the 
witness  appears  to  be  hostile  to  the  party  producing  him, 
or  in  the  interest  of  the  other  party,  or  is  unwilling  to 
give  evidence;  2d,  when  an  omission  in  his  testimony  is 
evidently  caused  by  want  of  recollection,  which  a  sug- 
gestion may  assist;  3d,  when  a  witness  is  called  to  con- 
tradict another,  in  which  case  the  particular  expressions 
may  be  used  instead  of  asking  witness  what  was  said.^ 

3.  When  and  under  what  circumstances  a  leading  ques- 
tion may  be  put  is  a  matter  for  the  court  to  decide,^  but 
it  should  ordinarily  be  controlled  by  the  common  law 
rules  on  the  subject. 

4.  On  the  direct  examination  the  questions  should  be 
material  and  relevant,  and  irrelevant  questions  should 
be  excluded;  yet  great  caution  should  be  exercised  in 
excluding  questions  on  this  ground,  as  many  questions 
which  appear  irrelevant  may  ''constitute  a  link  in  the 
chain  of  proof,"  without  bearing  directly  or  immediately 
upon  the  charge. 

>  I  Greenleaf,  sec.  434.  ^Ib.,  435. 


EXAMINATION   OF   WITNESSES.  43 

5.  As  a  rule,  also,  the  testimony  should  be  confined  to 
facts  within  the  witness'  personal  knowledge,  and  mat- 
ters of  opinion  excluded;  but  in  matters  of  common 
observation,  such  as  drunkenness,  or  manner,  whether 
insolent,  insubordinate,  or  otherwise,  etc.,  he  may  state 
his  opinion  or  belief  as  to  the  state  of  sobriety,  or  as  to 
the  manner  of  the  accused  at  the  time  specified.  There 
are,  moreover,  two  other  excepted  classes  of  cases  in 
which  a  witness  may  give  his  opinion  t  Ist,  when  it  is  the 
result  of  his  observation  of  complex  facts  which  from 
their  nature  can  not  be  brought  before  the  court,  as  in 
case  of  the  identity  of  a  person  or  proof  of  handwriting; 
2d,  when  the  case  involves  a  question  of  science  or  a 
knowledge  of  a  specialty,  in  which  case  the  testimony 
of  experts  is  admissible.  For  a  witness  to  be  competent 
in  the  latter  case,  it  must  be  shown  by  the  party  produc- 
ing him  that  he  is  an  expei't. 

6.  To  refresh  his  memory,  the  witness  may  use  a  memo- 
randum made  at  the  time  of  the  fact  or  action  to  which 
it  refers ;  such  a  writing  should  be  exhibited  to  the  court 
to  show  its  nature. 

Sec.  III.  Cross-examination.— The  cross-examination 
should  ordinarily  be  confined  to  the  matter  of  the  direct 
examination ;  yet  this  rule  does  not  apply  to  questions 
outside  of  the  main  issue,  asked  for  the  purpose  of  test- 
ing the  motives,  prejudices,  or  credit  of  the  witness. 

2.  In  view  of  its  purpose  and  significance,  a  much 
greater  latitude  is  allowed  upon  the  cross-examination 
than  upon  the  direct  examination;  e.  g.,  leading  ques- 
tions being  freely  allowed,  and  matters  otherwise  irrele- 
vant and  collateral  permitted  when  the  object  is  to  test 
the  knowledge,  memory,  or  animus  of  the  witness,  and 
thus  discredit  his  testimony.  Collateral  or  irrelevant 
matter  can  not,  however,  be  entered  into  for  the  purpose 
of  contradicting  the  witness  by  other  testimony  and  thus 
discrediting  him ;  though  the  question  whether  the  wit- 
ness has  not,  at  some  previous  time,  told  a  different  story 
(particularizing  it  as  to  substance,  time,  and  place),  may 


44  MANUAL  FOR  COURTS-MAHTIAL. 

be  asked  with  the  view  of  contradicting  him  in  case  he 
answers  in  the  negative.  He  may  also  be  asked  whether 
he  has  not  previously  expressed  hostility  to  the  accused. 

Sec.  IV.  Re-examination. — Where  the  witness,  in  the 
cross-examination,  has  made  statements  at  variance  with 
those  made  upon  his  direct  examination,  the  party  call- 
ing him  may  re-examine  him  to  elicit  an  explanation  of 
those  statements,  or  his  motive  in  making  them.  This  is 
strictly  the  full  scope  of  a  re-examination,  but  the  court 
may,  in  its  discretion,  make  exceptions  in  the  interest  of 
justice.  When,  however,  upon  cross-examination,  new 
matters  have  been  introduced,  the  witness  may  be  re- 
examined upon  these.  1 

Sec.  V.  Rebuttal. — Witnesses  in  rebuttal  may  be  called 
by  the  judge-advocate,  to  supjiort  the  character  for  verac- 
ity of  his  witnesses  impeached  by  the  accused;  to  im- 
peach the  character  of  witnesses  for  the  defense;  and  to 
rebut  any  and  all  new  matter  introduced  by  the  accused 
and  not  touched  upon  by  the  prosecution. 

2.  The  accused  may  cross-examine  such  new  witnesses, 
called  in  rebuttal,  and  may  himself  call  other  witnesses 
to  fortify  the  character  of  his  previous  witnesses;  but 
for  this  purpose  only  when  these  have  been  impeached 
by  the  judge-advocate. 

Sec.  VI.  Examination  by  the  Court. — The  court 
should,  ordinarily,  defer  questioning  a  witness  until  his 
examination  by  the  judge-advocate  and  the  accused  has 
been  completed ;  if  a  member,  for  any  reason,  as  when  he 
sees  something  material  omitted,  wishes  to  put  a  ques- 
tion before  this  time,  he  may  suggest  it  to  either  the 
judge-advocate  or  the  accused. 

2.  The  questions  of  the  court  should  be  for  the  purpose 
of  clearing  up  doubt  upon  obscure  points,  or  of  recon- 
ciling discrepancies  in  the  testimony.  With  this  in  view, 
if  the  court  desires  to  hear  evidence  not  introduced  by 
either  party,  it  may  properly  call  upon  the  judge-advo- 
cate to  procure  the  same  if  practicable.     Any  testimony 

'  I  Greenleaf,  sec.  467. 


CREDIBILITY  OF  WITNESSES.  45 

thus  introduced  would,  of  course,  be  subject  to  cross- 
examinatioQ  and  rebuttal  by  the  party  to  whom  it  is 
adverse. 

3.  Though  the  above  is  the  proper  order  and  sequence 
of  examination,  the  court  may,  in  the  interests  of  truth 
and  justice,  call  or  recall  witnesses  at  any  stage  of  the 
proceedings,  both  parties  being  present ;  it  may  permit 
material  testimony  to  be  introduced  by  either  party,  quite 
out  of  its  regular  order  and  place ;  or  permit  a  case,  once 
closed  by  either  or  both  sides,  to  be  reopened  for  the  intro- 
duction of  testimony,  previously  omitted,  even  though 
this  may  have  been  done  through  negligence,  if  con- 
vinced that  this  testimony  is  so  material  that  its  omission 
would  leave  the  investigation  incomplete. 

CREDIBILITY   OF    WITNESSES. 

1.  A  witness'  credibility  may  be  attacked:  Ist,  by  dis- 
proving his  testimony;  2d,  by  evidence  impeaching  his 
general  reputation  for  truth — particular  instances  of  un- 
truthfulness not  being  proper  subjects  of  inquiry;  3d,  by 
proof  of  statements  out  of  court,  contradictory  to  his 
testimony.  This  is  not  permitted  unless,  if  the  statement 
was  oral,  he  was  asked  on  cross-examination  whether, 
at  a  time  and  place  specified,  he  had  not  made  such  a 
statement  to  a  person  named,  or,  if  the  statement  was  in 
writing,  without  showing  him  the  writing  or  proving  its 
loss. 

2.  A  party  can  not  discredit  his  own  witness ;  but  if  he 
is  imposed  upon,  or  the  witness  unexpectedly  testifies 
adversely,  he  may  contradict  him  by  others.  ^ 

3.  Unless  the  accused  calls  witnesses  as  to  his  own 
character,  this  can  not  be  attacked  by  the  prosecution. 
The  accused  having  put  his  character  in  issue,  the  prose- 
cution may  impeach  it. 

II  Greenleaf,  sees.  4i2-444. 


46  MANUAL  FOR  COURTS-MARTIAL. 


PROOF  OF  INTENT. 

1.  "  Where  an  act,  in  itself  indifferent,  becomes  criminal 
if  done  with  a  particular  intent,  then  the  intent  must  be 
proved  and  found;  but  where  tlie  act  is  in  itself  unlawful, 
the  proof  of  justification  or  excuse  lies  on  the  defendant; 
and  in  failure  thereof,  the  law  implies  a  criminal  intent."^ 

REMARKS   ON  EVIDENCE. 

1.  Courts-martial,  in  the  absence  of  any  specific  statu- 
tory rules,  are  in  general  governed  by  the  rules  of  evidence 
to  be  found  in  the  common  law. 

2.  The  best  evidence  obtainable  should,  of  course, 
always  be  submitted.  The  weight  of  evidence,  however, 
does  not,  necessarily,  depend  upon  the  number  of  wit- 
nesses. A  single  witness,  whose  statements,  manner,  and 
appearance  on  the  stand  are  such  as  to  commend  him  to 
credit  and  confidence,  will  sometimes  properly  outweigh 
several  less  acceptable  and  satisfactory  witnesses. 

3.  Hearsay  evidence  is  inadmissible;  but  the  court 
should  be  careful  not  to  confound  original  with  hearsay. 
Thus  the  fact  in  controversy  may  be  whether  such  things 
were  written  or  spoken,  and  not  whether  they  are  true, 
or  such  language  or  statement  may  be  a  necessary  or  an 
inseparable  concomitant  of  the  fact  in  issue.  In  such 
cases  the  writings  or  words  are  not  hearsay,  but  original 
facts  admissible  as  evidence.^ 

4.  ''The  proceedings  of  a  court  of  inquiry  may  be 
admitted  as  evidence  by  a  court-martial,  in  cases  not 
capital,  nor  extending  to  the  dismissal  of  an  officer: 
Provided,  That  the  circumstances  are  such  that  oral  testi- 
mony can  not  be  obtained.'^  '^ 

5.  Affidavits  taken  ex  parte,  and  not  as  depositions 
under  article  91,  are  in  no  case  admissible  as  evidence  on 
a  trial  by  court-martial,  if  objected  to. 

1  III  Greenleaf,  sec.  13. 
21  Greenleaf,  sec.  100. 
3121st  A.  "W. 


FINDING.  •  47 

6.  Documentary  evidence  is  only  admissible  when  its 
authenticity  has  been  established  by  sworn  testimony,  or 
by  the  seal  of  a  court  of  record,  or  when  its  authenticity 
is  admitted  by  the  accused. 

7.  When  transcripts  from  the  records  of  any  of  the  Ex- 
ecutive Departments  of  the  Government  are  used,  they 
should  be  authenticated  under  the  seals  of  such  Depart- 
ments.' 

8.  When  a  document  contains  primary  evidence  of  a 
fact,  oral  testimony  of  its  contents  is  inadmissible,  unless 
the  nonproduction  of  the  document  can  be  satisfactorily 
explained. 

9.  When  original  documents  are  introduced  and  they 
are  of  such  character  that  they  can  not  be  retained,  certi- 
fied copies  will  be  appended  to  the  record. 

FINDING. 

1  The  finding  of  the  court  will  be  governed  by  the  evi- 
dence considered  in  connection  with  the  plea.  The  finding 
upon  the  charge  should  be  consistent  with  that  upon  the 
specification. 

2.  The  accused  may  be  found  guilty  of  parts  of  the 
specification,  not  guilty  of  the  remainder,  and  then,  if  the 
specification  still  supports  the  charge,  guilty  of  the  charge. 

3.  If  the  evidence  proves  the  commission  of  an  offense 
less  in  degree  than  that  specified,  yet  kindred  to  it,  the 
court  may  except  words  of  the  specification,  substitute 
others  instead,  pronounce  the  guilt  and  innocence  of  the 
substituted  and  excepted  words,  respectively,  and  then 
find  the  accused  not  guilty  of  the  charge,  but  guilty  of 
the  lesser  kindred  oflfense.  Of  this  form  of  verdict,  the 
most  familiar  is  the  finding  of  guilty  of  absence  without 
leave  under  a  charge  of  desertion.     In  such  a  case,  in  its 

»Sec.882,R.S. 


art 
'    virr 


48  MANUAL  FOR   COURTS-MARTIAL. 

finding  of  guilty  upon  the  specification,  the  court  should 
in  terms  except  the  words  '^did  desert,"  and  suhstitute 
therefor  the  words  ''did  absent  himself  without  author- 
ity." The  finding  upon  the  charge  should  regularly  be 
"not  guilty,  but  guilty  of  absence  without  leave. "^ 

4.  Another  legal  and  now  common  form  of  finding  is 
where  an  accused  is  charged  with  a  specific  ofi'ense,  made 
punishable  by  an  Article  of  War,  other  than  the  62d,  and 
the  court  is  of  the  opinion  that,  while  the  material  alle- 
gations in  the  specification  are  proved,  they  do  not  fully 
sustain  the  charge  as  laid,  but  do  clearly  establish  a 
breach  of  military  discipline;  in  this  case  the  accused 
may  properly  be  found  guilty  of  the  specification  and  not 
guilty  of  the  charge,  but  guilty  of  "conduct  to  the  preju- 
dice of  good  order  and  military  discipline."  It  should  be 
remembered,  however,  that  the  court  can  not  in  its  find- 
ing legally  substitute  the  62d  Article  of  War  for  any  other, 
unless  the  proof  under  the  specification  fails  to  substan- 
tiate the  original  charge.  The  reverse  of  this  form  of  find- 
ing has  never  been  sanctioned.  Thus  where  a  charge  is 
laid  under  the  general  article,  a  finding  under  any  other 
article,  or,  where  a  charge  is  laid  under  a  si)ecific  article, 

finding  under  any  other  specific  article,  would  be  wholly 
egular. 

5.  In  a  case  of  virtual  acquittal,  to  use  the  term  "  guilty  " 
is  improper;  the  correct  expression  is,  "Find  the  facts  as 
charged,  but  attach  no  criminality  thereto."  "Guilty" 
should  be  employed  only  when  the  accused  has  been  con- 
victed of  a  crime  deserving  punishment. 

'  It  is  beyond  the  power  of  a  reviewing  officer  to  change  a  finding 
by  his  own  action.  Thus  where,  in  a  case  of  desertion,  the  reviewing 
authority  approved  "  so  much  only  of  the  finding  of  guilty  of  deser- 
tion as  convicted  the  accused  of  absence  without  leave,"  it  was  held 
that  he  thus  substituted  a  finding  of  his  own  for  that  of  the  court, 
and  that  his  action  was  unauthorized. 


PREVIOUS  CONVICTIONS.  49 


PREVIOUS  CONVICTIONS.! 

1.  "In  every  case  where  evidence  of  previous  convic- 
tions is  admissible,^  and  the  accused  is  convicted  of  the 
ofteuse,  the  court,  after  de  ermining  its  findings  and  be- 
fore awarding  sentence,  will  be  opened  for  the  purpose 
of  aficertaining  whether  there  be  such  evidence;  and  if 
so,  of  hearing  it."^ 

2.  Previous  convictions  by  courts-martial  other  than 
the  summary  court  are  pro\'ed  by  the  records  of  the  trials 
or  by  duly  authenticated  oi  ders  promulgating  them.^  The 
proper  evidence  of  previous  convictions  by  summary 
court  is  the  copy  of  a  sunmary  court  record  furnished  to 
company  and  other  co  omanders,  as  required  by  i)ara- 
graph  932,  Army  KegrJations,  or  one  furnished  for  the 
purpose,  and  certified  to  be  a  true  copy  by  the  post  com- 
mander or  adjutant.* 

3.  The  previous  couvictions  are  not  limited  to  those  for 
offenses  similar  to  the  one  for  which  the  accused  is  on 
trial.  The  object  is  "to  see  if  the  prisoner  is  an  old 
offender,  and  therefore  less  entitled  to  leniency  than  if 
on  trial  for  his  first  oftense."  This  information  might  not 
be  fully  obtained  if  evidence  of  previous  convictions  of 
similar  ofi'enses  only  were  laid  before  the  court.  It  has 
no  bearing  upon  the  quastion  of  guilt  of  the  particular 
charge  on  trial,  but  onlj^  upon  the  amount  and  kind  of 
punishment  to  be  awarde.l,^  and  to  this  end  it  is  proper 


>  By  "  previons  conviction ' '  is  meant  a  conviction  where  the  sentence 
has  been  approved  by  compete;  \t  authority.  This  refers  to  all  trials 
except  where  the  post  couimarder  sits  as  a  summary  court,  when  no 
approval  of  the  sentence  is  required  by  law.  For  instructions  as  to 
when  evidence  of  previous  convictions  must  be  submitted  with 
charges,  see  page  19,  note  1,  supra,  and  for  instructions  to  sum- 
mary courts  regarding  previous  convictions,  see  page  78,  infra. 

'See  page  59,  section  1,  infrc . 

'Par.  929,  A.  R. ;  see  also  pa| e  60,  sec.  2,  infra. 

*The  introduction  of  evidence  of  convictions  by  civil  courts  is  not 
authorized. 

«Par.929,  A.R. 

6  For  eflfect  on  amount  of  punishment,  see  page  59,  section  1, 
infra. 

4644 3 


50  MANUAL   FOR  COURTS-MARTIAL. 

that  all  previous  convictioQS  should  be  known.  As  the 
accused  is  not  on  trial  for  the  offenses,  evidence  of  the  pre- 
vious convictions  of  which  it  is  proposed  to  introduce,  the 
103d  Article  of  War  can  not  be  held  to  apply. ^ 

PUNISHMENT. 

1.  Punishment,  under  the  Articles  of  War,  is  either 
fixed  or  is  left  to  the  discretion  of  a  court-martial.  If 
the  punishment  is  i)rescribed  in  the  article  violated,  any- 
other  punishment  than  that  prescribed  is  illegal.  Before 
pronouncing  sentence,  the  court  should,  therefore,  in  case 
of  any  uncertainty,  examine  the  article  violated  to  see 
what  punishment  may  be  legally  awarded,  and  in  award- 
ing punishment  it  should  be  remembered  that  the  i)roper 
amount  of  punishment  is  the  least  by  which  discipline 
can  be  efficiently  maintained. 

2.  For  officers,  the  legal  j)unishments  by  courts-martial, 
depending  on  the  nature  of  the  offense,  are,  death,  dis- 
missal, suspension  from  rank,  command,  or  duty,  with  or 
without  loss  of  pay  or  part  of  pay,  loss  of  relative  rank 
or  files,  imprisonment,  fine  or  forfeiture  of  pay,  and 
reprimand. 

3.  For  soldiers,  the  legal  jiunishments,  depending  on  the 
character  of  the  offense  and  the  jurisdiction  of  the  court, 
are,  death,  confinement,  confinement  on  bread-and-water 
diet,  solitary  confinement,  hard  labor,  ball  and  chain, 
forfeiture  of  pay  and  allowances,  forfeiture  of  retained 
pay,"  dishonorable  discharge  from  service,^  and  repri- 
mand; for  noncommissioned  officers,  reduction  to  the 
ranks  also  ;^  and  for  '^candidates  for  promotion,"  depriva- 
tion of  all  rights  and  privileges  arising  from  a  certifi- 
cate of  eligibility.*^ 


1  This  rule  is  not  changed  by  the  order  of  the  President  jirescribing 
the  limit  of  punishment. 

2  See  page  51,  par.  12,  and  page  78,  par.  16,  infra. 

3  A  dishonorable  discharge  is  an  entire  expulsion  from  the  Army 
and  covers  all  unexpired  enlistments. 

*  In  regard  to  sergeants  of  the  post  noncommissioned  staff  and 
hospital  stewards,  see  pages  62  and  63,  infra. 
s  Act  of  July  30,  1892 ;  see  G.  O.  79  A.  G.  O.,  1892. 


PUNISHMENT.  61 

4.  ''No  person  in  the  military  service  shall  be  punished 
by  flogging,  or  by  branding,  marking,  or  tattooing  on  the 
body." ' 

5.  Military  prisoners  will  not  be  punished  by  being 
required  to  carry  a  heavy  log.  Some  other  i)anishment 
can  be  found  equally  effective  and  not  open  to  the  objec- 
tions urged  against  this  method. 

6.  Punishment  by  ball  and  chain  will  be  imposed  only 
in  extreme  cases.^ 

7.  "  Sentences  imposing  tours  of  guard  duty  are  for- 
bidden." 3 

8.  Solitary  confinement,  or  confinement  on  bread-and- 
water  diet,  shall  not  exceed  fourteen  days  at  a  time,  nor 
be  again  enforced  until  a  period  of  fourteen  days  has 
elapsed.  Nor  shall  such  confinement  exceed  eighty-four 
days  in  any  one  year."* 

9.  A  court-martial  may  direct  a  forfeiture  only  in  favor 
of  the  United  States,  A  company  fund  has  not  been 
recognized  by  law  as  public  money,  and  the  pay  of  a  sol- 
dier can  not  be  stopped  to  reimburse  the  same  for  losses. 

10.  A  court-martial  can  not  assign  the  pay  of  a  soldier 
to  any  other  person;  nor  can  a  soldier  be  required  to 
receipt  for  money  paid  without  his  consent. 

11.  A  general  court-martial  before  which  an  enlisted 
man  is  being  tried  is  charged  with  a  knowledge  of  the 
time  of  expiration  of  his  terra  of  enlistment,  and  a  sen- 
tence imposing  imprisonment  for  a  period  in  effect  extend- 
ing to  or  beyond  the  expiration  of  liis  term  of  enlistment 
is  held  to  be  an  express  sentence  of  confinement  until  or 
beyond  the  expiration  of  such  term. 

12.  When  a  general  court-martial  awards  a  sentence 
forfeiting  a  soldier's  pay  for  several  months  without  ex- 
pressly including  retained  pay,  it  will  be  held  that  the 
soldier's  retained  pay  for  those  months  is  not  forfeited. 

« 98th  A.  W. 

»  See  page  70,  par.  3,  infra. 

»  Par.  939,  A.  R. 

•  See  page  62,  infra. 


52  MANUAL  FOR  COURTS-MARTIAL. 

13.  ''If  a  soldier  be  brought  to  trial  under  a  charge  of 
desertion  and  acquitted,  or  convicted  of  absence  without 
leave  only,  or  if  the  sentence  be  disapproved  by  proper 
authority,  any  amount  paid  as  a  reward  for  his  arrest 
will  not  be  stopped  against  his  pay  unless,  in  case  of  con- 
viction of  absence  without  leave,  the  sentence  of  the 
court  shall  so  direct."  i 

14.  "No  person  in  the  military  service  shall,  under  the 
sentence  of  a  court-martial,  be  punished  by  confinement 
in  a  penitentiary,  unless  the  offense  of  which  he  may  be 
convicted  would,  by  some  statute  of  the  United  States, 
or  by  some  statute  of  the  State,  Territory,  or  District  in 
which  such  offense  may  be  committed,  or  by  the  common 
law,  as  the  same  exists  in  such  State,  Territory,  or  Dis- 
trict, subject  such  convict  to  such  punishment."  ^ 

15.  The  97th  Article  of  AVar  only  limits  the  discretion 
of  the  court  as  "  to  imprisonment  in  the  penitentiary, 
and  it  has  been  nowhere  provided  that  the  i)unishment 
may  not  in  other  respects  be  greater  than  the  civil  courts 
could  inflict." 3  Notwithstanding  this,  a  court-martial 
should  properly  consult  the  statute  governing  the  civil 
courts,  in  order  to  determine  a  reasonable  measure  of 
punishment  for  the  offense. 

16.  The  most  common  offenses  punishable  by  confine- 
ment in  a  penitentiary  are,  those  mentioned  in  Article 
60,  and  robbery,  grand  larceny,  embezzlement,  forgery, 
burglary,  arson,  mayhem,  manslaughter,  assault  with 
intent  to  kill,  rape,  or  assault  with  intent  to  commit 
rape.  Any  of  these  offenses,  when  committed  to  the  prej- 
udice of  good  order  and  military  discipline,  either  in 
time  of  peace  or  war,  are  punishable  as  stated. 


1  Par.  127,  A.  R.    This  paragraph  is  not  affected  bj'  the  order  of 
the  President  prescribing  the  limit  of  punishment. 

2  97th  A.  W. 

3  0pin.  XJ.  S.  Supreme  Court;  see  Q.  O.  61,  A.  G.  O.,  1882. 


LIMIT  OF  PUNIfciHMENT.  53 


MAXIMUM  I.IMIT  OF  PUNISHMENT. 

The  act  of  September  27, 1890,  provides:  "That  when- 
ever hy  auy  of  the  Articles  of  War  for  the  government  of 
the  Army  the  punishment  on  conviction  of  any  military 
offense  is  left  to  the  discretion  of  the  court-martial,  the 
punishment  therefor  shall  not,  in  time  of  peace,  he  in  ex- 
cess of  a  limit  which  the  President  may  i^rescrihe."  The 
last  order  of  the  President  prescribing  limits  of  punish- 
ment is  as  follows : 

Executive  Mansion, 

March  20,  1895. 
The  Executive  order,  dated  February  26,  1891,  estab- 
lishing limits  of  punishment  for  enlisted  men  of  the  Army, 
under  an  act  of  Congress  approved  September  27,  1890, 
and  which  was  published  in  General  Orders,  No.  21, 1891, 
Headquarters  of  the  Army,  is  amended  so  as  to  prescribe 
as  follows : 

Article  I. 

In  all  cases  of  desertion  the  sentence  may  include  dis- 
honorable discharge  and  forfeiture  of  pay  and  allowances. 

Subject  to  the  modifications  authorized  in  section  3  of 
this  article  the  limit  of  the  term  of  confinement  (at  hard 
labor)  for  desertion  shall  be  as  follows : 

Section  1.  In  case  of  surrender — ^ 

(ft)  When  the  deserter  surrenders  himself  after  an 
absence  of  not  more  than  thirty  days,  one  year. 

'  By  the  surrender  of  a  deserter,  as  the  word  is  used  in  the  above 
order,  is  meant  a  surrender  in  good  faith.  A  surrender  in  order  to 
share  in  the  reward  paid  for  apprehension,  or  because  apprehension 
can  not  be  avoided,  or  for  any  fraudulent  purpose,  is  not  to  be  treated 
as  a  "surrender  within  the  meaning  of  the  order.  For  action  to  be 
taken  by  post  commander  in  case  of  surrender  or  apprehension  of  a 
deserter  see  par.  120,  A.  R  ,  and  for  meaning  of  "deserter's  release," 
see  circular  5,  A.  G.  O.,  1894. 


54 


MANUAL  FOR  COURTS-MARTIAL. 


(&)  When  the  surrender  is  made  after  an  absence  of 
more  than  thirty  days,  eighteen  months. 

Sec.  2.  In  case  of  apprehension — 

(a)  When  at  the  time  of  desertion  the  deserter  shall 
not  have  been  more  than  six  months  in  the  service/ 
eighteen  months, 

(6)  When  he  shall  have  been  more  than  six  months  in 
the  service,  two  and  one-half  years. 

Sec.  3.  The  foregoing  limitations  are  subject  to  modi- 
fication under  the  following  conditions : 

(a)  The  i)uuishment  of  a  deserter  may  be  increased  by 
one  year  of  coniinement  at  hard  labor  in  consideration 
of  each  previous  conviction  of  desertion. 

(&)  The  punishment  for  desertion  when  joined  in  by 
two  or  more  soldiers  in  the  execution  of  a  conspiracy,  or 
for  desertion  in  the  presence  of  an  outbreak  of  Indians, 
or  of  any  unlawful  assemblage  which  the  troops  may 
be  opposing,  shall  not  exceed  dishonorable  discharge, 
forfeiture  of  all  pay  and  allowances,  and  confinement  at 
hard  labor  for  five  years. 

Article  II. 

Except  as  herein  otherwise  indicated  punishments  shall 
not  exceed  the  limits  prescribed  in  the  following  table : 


Offenses. 


Limits  of  punishment. 


Under  17th  Article  of  War. 
Sellinjif  horse  or  arms,  or  both. 


Selling  accoutrements 


Dishonorable  discharge,  forfeiture  of 
all  pay  antl  allowances,  and  con- 
iinement at  hard  labor  for  three 
years. 

Four  months'  confinement  at  hard 
labor  and  forfeiture  of  $10  per 
month  for  the  same  period ;  for  non- 
commissioned officer,  reduction  in 
addition  thereto. 

Two  months'  confinement  at  hard 
labor  and  forfeiture  of  $10  per 
month  for  the  same  period ;  for  non- 
commissioned officer,  reduction  in 
addition  thereto. 

'The  expression  "in  the  service"  has  reference  not  only  to  the 
soldier's  present  enlistment,  but  also  to  all  previous  enlistments— in 
other  words,  to  the  aggregate  of  his  service. 


Selling  clothing. 


LIMIT  OF  PUNISHMENT. 


Limita  of  punishment. 


Undeb  17th  A.rticleofWab— 
Continued. 

Losing   or   spoiling   horse  or 
arms  through  neglect. 


Losing  or  spoiling  accoutre- 
ments or  clothing  through 
neglect. 

Under  20th  Article  of  "War. 

Behaving  himself  with  disre- 
spect to  his  conimantling  offi- 
cer. 


Under  24th  Article  of  "War. 

Refusing  to  ohey  or  using  vio- 
lence to  officer  or  ncmcom- 
missioned  officer  while  qtiell- 
ing  quarrels  or  disorders. 

Under  318t  Article  of  "War. 


Lying  out  of  quarters 

Under  32d  Article  of  "War. 


Absence  without  leave — ' 
Less  than  one  hour . 


From  one  to  six  hours  '. 


From  six  to  twelve  hours. . 


From    twelve 
four  hours. 


to  twenty- 


Four  months'  confinement  at  hard 
labor  and  forfeiture  of  $10  per 
month  for  the  same  period;  for 
noncommissioned  officer,  reduction 
in  addition  thereto. 

One  montlis  confinement  at  liard 
labor  and  forfeiture  of  $10 ;  for  non- 
commissioned officer,  reduction  in 
addition  thereto. 


Six  months'  confinen)ent  at  hard 
labor  and  forfeiture  of  $10  per 
month  for  the  same  i)eriod;  fornon- 
commissioiied  officer,  re<luction  in 
addition  thereto. 


Dishonorable  discharge,  with  for- 
feiture of  all  pay  and  allowances 
and  confinement  at  hard  labor  for 
two  years. 


Forfeiture  of  $2;  corporal,  $3; 
geant,  $4. 


Forfeiture  of  $1;  corporal,  $2;  ser- 
geant, $3 ;  1st  sergeant  or  noncom 
missioned  officer  of  higher  grade 

Forf«'iture  of  $2;  corporal,  $3;  ser- 
geant, $4;  1st  sergeant  or  noncom 
missioned  officer  of  liigher  grade 
$5. 

Forfeiture  of  $3;  corporal,  $4;  ser 
geant,  $6;  1st  sergeant  or  noncom 
missioned  officer  of  higher  grade, 
$7. 

Forfeiture  of  $5;  corporal,  $6;  ser 
geant,  $7;  Ist  sergeant  or  noncom 
missioned  officer  of  higher  grade, 
$10. 


•  Upon  trial  for  desertion  and  conviction  of  absence  without  leave 
only,  the  court  may,  in  addition  to  tlie  limit  prescribed  for  such 
absence,  award  a  stoppage  of  the  amount  paid  for  apprehension. 

» Including  first  and  excluding  last. 


56 


MANUAL   FOR   COITRTS-MARTIAL. 


Offenwes. 


Limits  of  punishment. 


Under  32d  Article  op  "War— 
Continued. 

Absence  without  leave — Cont'd. 
From  twenty-four  to  forty- 
eight  hours. 


From  two  to  ten  days. 


From  ten  to  thirty  days. 


From  thirty  to  ninety  day: 


For  ninety  or  more  than 
ninety  days. 


Under  33d  Articlp:  of  War. 

Failure  to  repair  at  the  time 
fixed,  dc,  to  the  place  of  pa- 
rade— 
For  reveille  or  retreat  roll 
call  and  11  p.  m.  inspec- 
tion. 
For  guard  detail 

For  fatigue  detail 

For  dress  parade 

For  the  weekly  inspection 

For  target  practice 

For  drill 

For  guard  mounting   (by 

musician). 
For  stable  duty 

Under  38th  Article  of  War 

Drunkenness— 

On  guard 


On  duty  as  company  cook . 


Forfeiture  of  $6  and  five  days'  con- 
linement  at  hard  labor,  i^or  cor- 
poral, forfeiture  of  $8;  sergeant, 
|lO;  Ist  sergeant  or  noncommis- 
sioned officer  of  higher  grade,  $12, 
or,  for  all  noncommissioned  offi- 
cers, reduction. 

Forfeiture  of  $10  and  ten  days'  con- 
finement at  hard  labor;  for  non- 
commissioned officer,  reduction  in 
addition  tliereto. 

Forfeiture  of  $20  and  one  month's 
confinement  at  hard  labor ;  for  non- 
commissioned officer,  reduction  in 
addition  thereto. 

Tliree  months'  confinement  at  hard 
labor  and  forfeiture  of  $10  per 
month  for  same  period;  for  non- 
commissioned officer,  reduction  in 
addition  thereto. 

Dishonorable  discharge  and  forfeit- 
ure of  all  ]»ay  and  allowances  and 
six  months'  confinement  at  hard 
labor. 


Forfeiture  of  $1;  corjioral,  $2;  ser- 
geant, $3;  1st  sergeant,  $4. 

Forfeiture  of  $5;  corporal,  $8;  ser- 
geant, $10. 


Forfeiture  of  .$2;  corporal,  $:!;  ser- 
geant, $5. 


Six  months'  confinement  at  hard 
labor  and  forfeiture  of  $10  per 
month  for  the  same  period;  for 
noncommissioned  officer,  redxiction 
in  addition  tliereto. 

Forfeiture  of  $20. 


LIMIT   OF   PUNISHMENT. 


57 


Offenses. 


Limits  of  punishment. 


Forfeiture  of  $12;  for  noncommis- 
sioned officer,  reduction  and  for- 
feiture of  $20. 


UxDER  38th  Article  ok  War— 
Continued. 

Drunkenness — Continued . 

On  extra  or  special  duty.  . 

Atdrill 

At  target  practice 

At  parade 

At  inspection 

guard  det»il. 
1  /-)  Al  stable  duty 

Under  40th  Article  of  War. 


Quitting  guard '  Six  months'  confinement  at  liard  la- 

I  bor  and  forfeiture  of  $10  per  montli 
j  for  the  same  period ;  for  iioncom- 
1  missioned  officer,  reduction  in  ad- 
dition thereto. 

Under  51st  Article  of  AVar. 


Persuading  soldiers  to  desert.. 

Under  60th  Article  of  War. 

Under  62d  Article  of  War. 
Manslaughter 

Assault,  with  intent  to  kill 

Burghiry 

Forgery 

Perj  urj' 

False  swearing 

Robbery 


Larceny  or  embezzlement  of 
property — ' 

Of  the  value  of  more  than 
$100. 


Dishonorable  discharge,  forfeiture  of 
all  pay  and  allowances,  and  one 
year.s'  confinement  at  hard  labor. 

Dishonorable  discharge,  forfeiture  of 
all  pay  and  aUowances,  and  four 
years'  confinement  at  hard  labor. 


Dishonorable  discharge,  forfeiture  of 
all  ])ay  and  allowances,  and  ten 
years'  confinement  at  hard  labor. 

Dishonorable  discharge,  forfeitureof 
all  pay  and  allowances,  and  ten 
years'  "confinement  at  hard  labor. 

Dishonorable  discharge,  forfeiture  of 
all  pay  and  allowances,  and  five 
years'  confinement  at  hard  labor. 

Dishonorable  discharge  forfeiture  of 
all  pay  and  allowances  and  four 
years'  confinement  at  hard  labor. 

Dishonorable  discharge,  forfeiture  of 
all  pay  and  allowances,  and  four 
jears'  confinement  at  hard  labor. 

Dishonorable  discharge,  forfeiture  of 
all  pay  and  allowances,  and  two 
years'  confinement  at  hard  labor. 

Dishonorable  discharge,  forfeiture  of 
all  pay  and  allowances,  and  six 
years'  confinement  at  hard  labor. 


Dishonorable  discharge,  forfeiture  of 
all  pay  and  allowances,  and  four 
yeara'  confinement  at  hard  labor. 


*  111  specifications  to  charges  of  larceny  or  embezzlement  the  value 
of  the  property  shall  be  stated. 

4644 3* 


58 


MANUAL   FOR    COURTS-MARTIAL. 


Offenses. 


Limits  of  punishment. 


Under  62d  Article  op  "War— 
Continued. 

Larceny  or  embezzlement  of 
property— Continued . 

Of  tlie  value  of  $100  or  less 
and  more  than  $50. 

Of  the  value  of  $50  or  less 
and  more  than  $20. 

Of  the  value  of  $20  or  less . . 


Fraudulent  enlistment,  pro- 
cured by  false  representation 
or  concealment  of  a  fact  in 
regard  to  a  prior  enlistment 
or  discharge,  or  in  regard  to 
conviction  of  a  civil  or  mili- 
tary crime. 

Fraudulent  enlistment,  other 
cases  of. 

Disobedience  of  orders,  iuA'olv- 
iug  willful  defiance  of  the 
authority  of  a  noncommis- 
sioned officer  in  the  execu- 
tion of  his  office. 

Using  threateniMg  or  insulting 
language  01  heluiviug  in  an  in- 
suboi'dinato  mauntrto  a  non- 
commissioned officer  while 
in  the  cxecuiifm  of  his  office. 

Absence  Irom  fatigue  duty. . . : . 


Absence  from  extra  or  special 
duty. 

Absence  from  duty  as  company 
or  hospital  cook. 

Introducing  li(iuor  into  post  or 
camp  in  violation  of  stand- 
ing orders. 

Drunkenness  at  jmst  or  in 
qnarters. 

Drunkenness  and  disorderly 
conduct,  causing  the  offend- 
er's arrest  and  conviction  by 
civil  authorities  at  a  place 
within  ten  miles  of  Ms 
station. 

Noisy  or  disorderly  ccmduct  in 
quarters. 

Abuse  by  noncommissioneil 
officer  of  hiii  authority  over 
in  inferior. 


Dishonorable  discharge,  forfeiture  of 
all  pay  and  allowances,  and  three 
years'  confinement  at  hard  labor. 

Dishonorable  discharge,  forfeiture  of 
all  pay  and  allowances,  and  two 
years'  confinement  at  hard  labor. 

Disbonorable  discharge,  forfeiture  of 
all  i)ay  and  allowances,  and  one 
year's  confinement  at  hard  labor. 

Dishonorable  discharge,  forfeiture  of 
all  pay  and  allowances,  and  con- 
finement at  hard  laborfor  one  year. 


Dishonorable  discharge  forfeiture  of 
all  ])ay  and  allowances,  and  confine- 
ment at  liard  labor  for  six  months. 

Six  months'  confinenieut  at  hard 
labor  and  forfeiture  of  $10  per 
month  for  the  same  period;  for 
noncommissioned  officer,  reduction 
in  addition  thereto. 

One  month's  <;onfinement  at  hard 
labor  and  forfeiture  of  $iO ;  for  non- 
commissioned officer,  reduction  in 
addition  thereto. 

Forfeiture  of  $4;  corporal,  $5;  ser- 
geant, $6. 

Forfeiture  of  $4;  corporal,  $">;  ser- 
geant, $G. 

Forfeiture  of  $10. 

Forfeiture  of  $3;  for  noncommis- 
sioned officer,  reduction  and  for- 
feiture of  $5. 

Forfeiture  of  $:};  tor  iioncommis- 
sioned  officer,  reduction  and  for- 
feiture of  .$5, 

Forfeiture  of  $10  and  seven  days' 
contiuement  at  hard  hibor;  for 
noncommissionpd  officer,  reducti(m 
and  forfeiture  of  $12. 


Forfeiture  of  $4 ;  corporal,  $7 ;  ser- 
geant, $10. 

Kedyction,  three  n.onths'  confine- 
mentat  hard  labor,  and  forfeiture  of 
$10  per  mojith  for  the  same  period. 


LIMIT  OF  PUNISHMENT. 


59 


Limits  of  punishment. 


Under  62d  Article  of  War- 
Cod  tinned. 

Noncommissioned  officer  en- 
couraging gambling. 

Noncommissioned  officer  mak- 
ing false  report. 

Sentinel  allowing  a  prisoner 
under  his  charge  to  escape 
through  neglect. 

Sentinel  willfully  suffering 
prisoner  under  his  charge  to 
escape. 

Sentinel  allowing  a  prisoner 
under  his  charge  to  obtain 
liquor. 

Sentinel  or  member  of  guard 
drinking  liquor  with  pris- 
oners. 

Disrespect  or  affront  to  a  sen- 
tinel. 


Resisting  or  disobejing  senti- 
nel in  lawful  execution  of 
his  duty. 


Lewd  or  indecent  exposure  of 
person. 


Kednction  and  forfeiture  of  $5. 

Reduction,  forfeiture  of  $8,  and  ten 
(lays'  confinement  at  hard  labor. 

Six  months'  confinement  at  hard 
labor  and  Jorfeiture  of  $10  per 
month  for  the  same  period. 

Dishonorable  discharge,  forfeiture 
of  all  pay  and  allowances,  and  one 
year's  confinement  at  hard  labor. 

Two  months'  confinement  at  hard 
labor  and  forfeiture  of  $10  per 
month  for  the  same  period. 

Two  months'  confinement  at  hard 
labor  and  forfeiture  of  $10  per 
month  for  the  same  period. 

Two  mouths'  confinement  at  hard 
labor  and  forfeiture  of  $10  per 
month  for  the  same  period;  for 
noncommissionedofficer,  reduction 
in  addition  thereto. 

Six  months'  confinement  at  hard 
labor  and  forfeiture  of  $10  per 
month  for  the  same  period;  for 
noncommissioned  officer,  reduction 
in  addition  thereto. 

Three  mouths'  confinement  at  hard 
labor  and  forfeiture  of  $10  per 
mouth  for  the  same  period;  for 
noncomm i ssioned officer,  reduction 
in  addition  thereto. 


Article  III. 

Section  1.  When  a  soldier  shall  be  convicted  of  an 
offense  the  punishment  for  which,  as  authorized  hy 
Article  II  of  this  order  or  the  custom  of  the  service,  does 
not  exceed  that  wliicli  an  inferior  court-martial  may 
award,  the  punishment  so  authorized  maybe  increased 
by  one-half  for  every  previous  conviction  of  one  or  more 
offenses  within  eighteen  months  preceding  the  trial  and 
during  the  current  enlistment ;'  provided  that  the  increase 
of  punishment  for  five  or  more  previous  convictions  shall 


•  When  the  limit  of  punishment  thus  prescribed  exceeds  that  which 
an  inferior  court  can  award,  the  case  will  be  referred  to  a  general 
court-martial. 


60  MANUAL   FOR   COURTS- MARTIAL. 

not  exceed  that  thus  authorized  when  there  are  four  pre- 
vious convictions,  and  that  when  one  or  more  of  such 
iive  or  more  previous  convictions  shall  have  been  by 
general  court-martial,  or  when  such  convictions  shall 
have  occurred  within  one  year  preceding  the  trial,  the 
limit  of  punishment  shall  be  dishonorable  discharge,  for- 
feiture of  all  pay  and  allowances,  and  confinement  at 
hard  labor  for  three  months.  ^ 

When  the  conviction  is  of  an  offense,  punishable  under 
Article  II  of  this  order  or  the  custom  of  the  service  with 
a  greater  punishment  than  an  inferior  court-martial  can 
award,  but  not  punishable  with  dishonorable  discharge, 
.the  sentence  may,  on  proof  of  five  or  more  previous  con- 
yictions  within  eighteen  months  and  during  the  current 
enlistment,  imx)ose  dishonorable  discharge  and  forfeiture 
of  all  pay  and  allowances  in  addition  to  the  authorized 
confinement,  and  when  this  confinement  is  less  than 
three  months  it  may  be  increased  to  three  months. 

When  a  noncommissioned  officer  is  convicted  of  an 
olVensenot  punishable  with  reduction,  he  may,  if  he  shall 
liave  been  convicted  of  a  military  offense  within  a  year 
and  during  the  current  enlistment,  be  sentenced  to  reduc- 
tion, in  addition  to  the  punishment  already  authorized. 

Sec.  2.  In  every  case  when  an  ottense  on  trial  before  a 
court-martial  is  of  a  character  admitting  -of  the  intro- 
duction of  evidence  of  previous  convictions,  and  the  ac- 
cused is  convicted,  the  court,  after  determining  its  find- 
ings,  will  be  opened  for  the  purpose  of  ascertaining 

'Par.  1, circular  12,  A,  G.  O.,  1892, explanatory  of  the  first  order  of 
tlio  President  prescribing  the  maximum  limit  of  liunishment,  is  not 
ai)plicablo  to  this  paragraph  of  this  order  of  the  President  amending 
tlio  first  order.  This  paragraph  now  creates  two  specific  classes  of 
f:ases,  viz:  1.  When  one  or  moreof  fivei>reviou8  convictions  within 
eighteen  months  shall  have  been  by  general  court-martial.  2.  Wlien 
live  or  more  convictions  by  inferior  courts  shall  have  occurred  within 
0)1(3  year  preceding  the  trial.  In  either  case  the  limit  of  punishment 
is  made  dishonorable  discharge,  forfeiture  of  all  pay  and  allowances, 
nrwlconflnementathardlabor  for  three  months.  This  being  the  maxi- 
mum punisliment,  it  may  be  reduced  bj' a  court  in  accordance  M'ith 
tlio  circumstances  of  a  particular  case. 


LIMIT   OP  PUNISHMENT.  61 

whether  there  is  such  evidence,  and,  if  so,  of  hearing  it. 
These  convictions  must  be  proved  by  the  records  of  pre- 
vious trials,  or  by  duly  authenticated  orders  promulgating 
the  same,  except  in  the  cases  of  conviction  by  summary 
court,  when  a  duly  authenticated  copy  of  the  record  of 
said  court  shall  be  deemed  sufficient  iiroof. '  Charges  for- 
warded to  the  authority  ordering  a  general  court-martial, 
or  submitted  to  a  summary,  garrison,  or  regimental  court, 
must  be  accompanied  by  the  proper  evidence  of  such 
previous  convictions  as  may  have  to  be  considered  in 
determining  upon  a  sentence.^ 

Article  IV. 

When  a  soldier  shall,  on  one  arraignment,  be  convicted 
of  two  or  more  otteuses,  none  of  which  is  punishable 
under  Article  II  of  this  order  or  the  custom  of  the  service 
with  dishonorable  discharge  but  tlie  aggregate  term  of 
confinement  for  which  may  exceed  six  months,  dishonora- 
ble discharge  with  forfeiture  of  pay  and  allowances  may 
be  awarded  in  addition  to  the  authorized  confinement. 

Article  V. 

This  order  prescribes  the  maximum  limit  of  punish- 
ment for  the  otlenses  named,  and  this  limit  is  intended 
for  those  cases  in  which  the  severest  xjunishment  should 
*be  awarded.  In  other  cases  the  punishment  should  be 
graded  down  according  to  the  extenuating  circumstances. 
Offenses  not  herein  provided  for  remain  punishable  as 
authorized  by  the  Articles  of  War  and  the  custom  of  the 
service. 

Article  VI. 

Summary  courts  are  subject  to  the  restrictions  named 
in  the  83d  Article  of  War.=^  Soldiers  against  whom  charges 
may  be  preferred  for  trial  by  summary  court  shall  not  be 

•  See  page  49,  supra. 

2  Par.  929,  A.  R. ;  see,  also,  page  19,  note  1,  tnipra. 

'  See  page  78,  pars,  l.'i  ami  16,  iii/ra. 


62  MANUAL   FOR   COURTS-MAKTIAL. 

eoijfined  in  the  guardhouse,  but  shall  be  placed  in  arrest 
in  quarters,  before  and  during  trial  and  while  awaiting 
sentence,  except  when  in  particular  cases  restraint  may 
be  necessary.  1 

Article  VII. 

The  following  substitutions  for  punishments  named  in 
Article  II  of  this  order  are  authorized  at  the  discretion  of 
the  court : 

Two  days'  coniinement  at  hard  labor  for  one  dollar  for- 
feiture ;  one  day's  solitary  coniinement  on  bread-and- water 
diet  for  two  days'  confinement  at  hard  labor  or  for  one 
dollar  forfeiture;^  I>rovided  that  a  noncommissioned  offi- 
cer not  sentenced  to  reduction  shall  not  be  subject  to  con- 
finement; and  2^rovided,  That  solitary  confinement  shall 
not  exceed  fourteen  days  at  one  time,  nor  be  repeated 
until  fourteen  days  have  elapsed,  and  shall  not  exceed 
eighty-four  days  in  one  year.  Whenever  the  limit  herein 
prescribed  for  an  offense  or  offenses  may  be  brought 
within  the  punishing  x)ower  of  inferior  courts-martial, 
as  defined  by  the  83d  Article  of  War,  by  substitution  of 
punishment  under  the  provisions  of  this  article,  the  said 
courts  have  jurisdiction  of  such  offense  or  offenses.^ 

Article  VIII. 

Noncommissioned  officers  above  the  rank  of  corporal 
shall  not,  if  they  object  thereto,  be  brought  to  trial 
before  regimental,  garrison,  or  summary  courts-martial, 
without  the  authority  of  the  ofhcer  competent  to  order 
their  trial  by  general  court-martial;^  nor  shall  sergeants 

•  Par.  936,  A.  R. ;  see,  also,  page  6,  supra. 

2 This  authorizes  only  the  substitutions  of  punishment  mentioned 
and  does  not  authorize  the  reverse  of  the  specified  substitutions. 
Ex<;ept  as  to  these  substitutions  courts  martial  are  restricted  to  the 
kinds  of  punishments  prescribed  for  the  particular  offenses  named  in 
above  order. 

^If  the  limit  prescribed  exceeds  that  defined  by  the  83d  A.  "W.,  the 
case  will  be  referred  to  a  general  court. 

*See  page  13,  Sec.  II,  supra;  also,  page  76,  pars.  5  and  6,  infra. 


SENTENCE.  63 

of  the  post  noncommissioned  staff  or  hospital  stewards 
be  reduced,  but  they  may  be  dishouorably  discharged 
whenever  reduction  is  included  in  the  limit  of  punish- 
ment.^ 

Grover  Cleveland. 

SENTENCE. 

1.  When  in  any  case  the  punishment  is  by  the  Articles 
of  War  left  to  the  discretion  of  the  court-martial  the 
court  will,  before  proceeding  to  award  the  punishment, 
ascertain  wliethera  limit  lias  been  fixed  by  the  foregoing 
executive  order.  ^  Those  members  desiring  to  propose  a 
sentence  usually  write  it  ou  a  slip  of  paper  and  hand  it 
to  the  i^resident.  The  president  reads  the  proposed 
sentences  to  the  court,  and  the  members  vote  on  them  in 
order,  beginning  with  the  lightest,  until  a  majority  agree 
upon  a  sentence.  In  a  case  where  a  punishment  is  fixed, 
the  members  vote  upon  a  sentence  awarding  this  punish- 
ment. Upon  a  death  sentence,  two- thirds  of  the  members 
must  concur  (the  record  so  explicitly  stating),  and  no 
person  can  be  sentenced  to  death  except  in  cases  ex- 
Xiressly  mentioned  in  the  Articles  of  War  or  in  section 
1343.  Revised  Statutes,  as  thus  punishable. =^ 

2.  "When  an  officer  is  dismissed  from  the  service  for 
cowardice  or  fraud,  the  sentence  shall  further  direct  that 
the  crime,  punishment,  name,  and  place  of  abode  of  the 
delinquent  shall  be  publishe'd  in  the  newspapers  in  and 
about  the  camp,  and  in  the  State  from  which  the  offender 
came,  or  where  he  usually  resides ;  and  after  such  publi- 
cation it  shall  be  scandalous  for  an  officer  to  associate 
with  him."^ 

3.  A  general  court-martial  may  sentence  a  soldier  to 
confinement  in  a  penitentiary  for  any  offense  which  may 
be  thus  punished  ''by  some  statute  of  the  United  States, 

>  Par.  931,  A.  R. 

'  ""When  a  sentence  of  confinement  or  forfeiture  is  in  excess  of  the 
legal  limit,  the  pjirt  within  the  limit  is  legal  and  may  be  executed." 
(Par.  943,  A.  R.) 

3  96th  A.  W. 

nooth  A.W. 


64  MANUAL   FOR   COURTS-MARTIAL. 

or  by  some  statute  of  the  State,  Territory,  or  District  in 
which  such  offense  may  be  committed,  or  by  the  common 
law,  as  the  same  exists  in  such  State,  Territory,  or  Dis- 
trict." '  When,  therefore,  the  sentence  of  such  a  court- 
martial  prescribes  imprisonment,  the  court  will  state 
therein  whether  the  prisoner  shall  be  confined  in  a 
lienitentiary  ^  or  at  a  post,  being  guided  in  its  determi- 
nation by  the  97th  Article  of  War,  from  which  the  fore- 
going quotation  is  taken. "^ 

4.  ''  When  a  sentence  imposes  forfeiture  of  pay,  or  of  a 
stated  portion  thereof,  for  a  certain  number  of  months,  it 
stops  for  each  of  those  months  the  amount  stated.  Thus : 
'Ten  dollars  of  monthly  pay  for  one  year'  Avould  be  a 
stoppage  of  $120.  AVhen  the  sentence  is  silent  as  to  the 
date  of  commencement  of  forfeiture  of  pay,  the  forfeiture 
will  begin  at  the  date  of  promulgation  of  the  sentence 
in  orders,  and  will  not  apply  to  pay  which  accrued  pre- 
vious to  that  date."^ 

5.  ''Notwithstanding  a  sentence  contemplates  payment 
of  a  stated  sum  to  a  soldier  upon  his  release  from  con- 
finement, it  can  not  be  made  unless  there  is  a  sufficient 
balance  to  his  credit  after  all  authorized  stoppages  are 
deducted.'"^ 

6.  ''A  sentence  adjudging  a  dishonorable  discharge,  to 
take  effect  at  such  a  period  during  a  term  of  confinement 
as  may  be  designated  by  .the  reviewing  authority,  is 
illegal."^ 

i-97th  A.  W. 

2  Unless  the  law  of  the  State,  Territory,  etc.,  in  which  the  courts  is 
convened,  are  at  hand,  it  is  impossible  ibr  the  court  to  determine  iu 
all  cases  whether  or  not,  under  the  97th  A.  "W.,  the  offender  is  pun- 
ishable by  penitentiary  confinement.  Therefore,  in  case  of  any 
doubt,  the  words  ' '  in  such  place  as  the  reviewing  authority  may 
direct,"  will  bo  used  in  the  sentence. 

3  Par.  940,  A.  R. 
4Ib.951. 
5Ib.,953. 

e  lb.,  949. 


i 


RECORD  OF  PROCEEDINGS.        65 

RECORD  OF  PROCEEDINGS. 

1.  Every  court-martial  will  keep  an  accurate  record  of 
its  proceedings.  The  record  in  each  case  will  be  complete 
in  itself,  and  will  contain  a  copy  of  the  order  appointing 
the  court.  It  will  be  authenticated  by  the  signatures  of 
the  president  and^udge-advocate,  the  latter  affixing  his 
signature  to  each  day's  proceedings. ^  The  record  must 
show  that  the  court  was  organized  as  the  law  requires, 
that  the  prisoner  was  asked  if  he  wished  to  object  to  any 
member  and  his  answer  to  such  question,  and  that  the 
members  of  the  court  and  the  judge-advocate  were  duly 
sworn. 

2.  All  orders,  modifying  the  detail  of  the  court  and 
issued  after  its  original  organization,  must  be  incorpo- 
rated in  the  record.  The  record  should  also  note  the  fact 
of  a  new  member  taking  his  seat,  or  a  neAv  judge-advo- 
cate commencing  to  officiate,  according  to  orders,  on  a 
certain  day. 

3.  The  entire  proceedings  will  be  spread  upon  the 
record;  all  orders  and  rulings  of  the  court;  all  motions, 
propositions,  objections,  arguments,  statements,  etc.,  of 
the  judge-advocate  or  the  accused ;  the  testimony  of  each 
witness,  as  nearly  as  possible  in  his  own  language;  in 
short,  every  feature  of  the  proceedings  material  to  a  com- 
plete history  of  the  case  and  to  a  correct  understanding 
of  every  point  of  the  same  by  the  reviewing  authority 
will  be  recorded  at  length. 

4.  Although,  since  the  passage  of  the  act  of  Congress 
of  July  27,  1892,  'Ho  amend  the  Articles  of  War,  etc.,"  it 
is  desirable  that  the  record  of  a  court-martial  should 
show  that  when  it  sat  in  closed  session  the  judge-advo- 
cate withdrew,  it  will  not  vitiate  the  proceedings  if  this 
is  not  expressly  stated.  Wheii  the  record  shows  that  the 
court  was  closcvi,  the  presumption  is  that  it  was  closefl 
in  accordance  with  the  requirements  of  law.'^ 

'  Par.  954  A.  R.  The  record  of  each  day's  proceedings  will,  if  prac- 
ticable, be  completed  in  time  to  be  submitted  to  the  court  at  its  next 
session  for  approval  or  correction.     See,  also,  page  125,  note  4,  infra. 

*For  form  for  closing  and  reopmiiug  court,  see  page  122,  infra. 


60  MANUAL  FOR   COURTS-MARTIAL. 

5.  The  ** statement  of  service"  referred  to  on  page  19, 
paragraph  4,  supra,  will  not  be  introduced  in  evidence 
nor  made  a  part  of  the  record  of  the  trial,  but  will  be 
returned  to  the  convening  authority  with  the  record,  i 

6.  A  recommendation  to  clemency  will  not  be  embr.iced 
in  the  body  of  the  sentence ;  but  will  be  appended  to  the 
record  after  any  exhibits  referred  to  in  the  proceedings. 
Only  those  members  who  concur  in  a  recommendation 
should  sign  it. 

REVISION  OF  RECORD.^ 

1.  "When  the  record  of  a  court  exhibits  error  in  prepa- 
ration, or  seemingly  erroneous  conclusions,  the  reviewing 
authority  may  reconvene  the  court  for  a  reconsideration 
of  its  action,  pointing  out  defects.  Should  the  court  con- 
cur in  the  views  submitted,  it  Avill  proceed  by  amend- 
ment to  correct  its  errors,  and  may  modify  or  complettely 
change  its  findings.  A  reopening  of  the  case,  by  calling 
or  recalling  witnesses,  is  illegal.'"'  \ 

2.  An  amendment  can  only  be  made  by  the  court  when 
duly  reconvened  for  the  purpose,  and  when  made  must 
be  the  act  of  the  court  as  such.  A  correction  made  by  the 
president  or  other  member,  or  by  the  judge-advocate, 
independently  of  the  court,  and  by  means  of  an  erasure 
or  otherwise,  is  unauthorized.  If  omissions  in  the  record 
are  to  be  supplied,  the  page  and  line  on  which  they  occur 
will  be  stated  and  the  corrections  given  in  full.  The 
original  record  will  not  be  interlined  nor  altered  in  any 
way. 

REVIEWING  AUTHORITY. 

1.  "No  sentence  of  a  court-martial  shall  be  carried  into 
execution  until  the  same  shall  have  been  approved  by  the 
officer  ordering  the  court,  or  by  the  officer  commanding 
for  the  time  being."  ^ 

1  Par.  927,  A.  K. 

'  For  form  for  revision  see  page  130,  infra. 

3  Par.  957,  A.  R. 

4  104th  A.  W. :  see  G.  O.  57,  A.  (}.  O..  1892. 


REVIEWma  AUTHORITY.  67 

2.  The  officer  having  authority  to  confirm  the  sentence 
of  a  court-martial  will  state  at  the  end  of  the  proceed- 
ings in  each  case  his  decisions  and  orders. ^ 

3.  All  sentences  of  courts-martial  may  be  confirmed 
and  carried  into  execution  by  the  officer  ordering  the 
court,  or  by  the  officer  commanding  for  the  time  being, 
where  confirmation  by  the  President,  or  by  the  command- 
ing general  in  the  field,  or  the  commander  of  the  depart- 
ment, is  not  required  by  the  Articles  of  War.'^  In  time  of 
peace,  sentences  directing  the  dismissal  of  an  officer  or 
inflicting  the  punishment  of  death  require  confirmation  by 
the  President.''  Proceedings  involving  either  dismissal 
or  death  will  therefore  (except  in  time  of  war,  in  cases 
mentioned  in  the  105th  and  107th  Articles  of  War)  be  for- 
warded by  the  convening  authority  direct  to  the  Judge- 
Advocate-General  for  the  action  of  the  President. 

4.  A  military  commander  can  not  delegate  to  an  infe- 
rior or  other  officer  his  function  as  reviewing  authority 
a«  conferred  by  the  104th  and  lOiHh  Articles  of  War.  Nor 
can  he  authorize  a  staif  or  other  officer  to  subscribe  for 
hiin  his  decision  and  orders  on  the  proceedings. 

5.  Every  officer  authorized  to  order  a  court-martial  has 
power  to  pardon  or  mitigate  any  punishment  adjudged  by 
it,^  except  that  of  death,"^  or  the  dismissal  of  an  officer.'^ 

6.  "The  power  to  pardon  or  mitigate  punishment  im- 
posed by  a  court-martial,  vested  in  the  authority  which 
confirms  the  proceedings,  extends  only  to  unexecuted  por- 
tions of  a  sentence,  and  continues  only  while  the  prisoner 
remains  under  the  jurisdiction  of  that  authority ;  the  fact 
that  a  soldier  has  l)een  dishonorably  discharged  through 
his  sentence  does  not  affect  this  power.  An  application 
for  clemency  in  case  of  a  general  prisoner  sentenced  to 
confinement  in  a  penitentiary  will  be  forwarded  to  the 
Secretary  of  War  for  the  action  of  the  President."^ 

•  Par.  955.  A.  R.  ■*  112tli  A .  TT. 

*  109th  A .  W.  s  l65tli  A .  W. 
3105tli,  lOCth,  and  108th  A.  W.        «  106th  A.  W. 

'  Par.  91G,  A.  K. 


68  MANUAL   FOR   COURTS-MARTIAL. 

7.  "Any  officer  who  lias  authority  to  carry  into  execu- 
tion the  sentence  of  death,  or  of  dismissal  of  an  officer, 
may  suspend  the  same  until  the  jileasure  of  the  President 
shall  be  known ;  and,  in  such  case,  he  shall  immediately 
transmit  to  the  President  a  copy  of  the  order  of  suspen- 
sion, together  with  a  copy  of  the  proceedings  of  the 
court."  ^ 

8.  While  a  reviewing  authority  may  remit  or  mitigate 
a  sentence,  he  can  not  change  it  so  as  to  impose  a  punish- 
ment of  a  different  nature;  thus,  he  can  not  change  a 
sentence  of  dishonorable  discharge  awarded  an  enlisted 
man  to  confinement  at  hard  labor.^ 

9.  ''The  authority  which  has  designated  the  place  of 
confinement,  or  higher  authority,  may  change  the  i^lace 
of  confinement  of  any  prisoner  under  the  jurisdiction  of 
such  authority;"^  but  "when  the  court  has  sentenced  a 
prisoner  to  confinement  at  a  post,  no  power  is  competent 
to  increase  the  punishment  by  designating  a  penitentiary 
as  the  place  of  confinement."'' 

10.  When  general  courts-martial  have  properly  sen- 
tenced soldiers  to  confinement  in  a  penitentiary, •'•  "  de- 
partment commanders  will  designate  the  United  States 
Penitentiary  at  Fort  Leavenworth,  Kansas,  as  the  place 
of  execution  of  such  sentences,  in  cases  in  which  the  term 
of  confinement  imposed  is  more  than  one  year.  If  any 
State  or  Territory  within  a  military  department  has  made 
provision  by  law  for  the  confinement  of  such  prisoners  in 
its  penitentiaries,  the  department  commander,  with  the 
aiiproval  of  the  Secretary  of  War,  may  designate  one  as 
the  place  of  execution  of  sentence."^ 

i  111th  A.  W. 

2  As  to  authority  of  reviewing  officer  to  change  finding,  see  page  48, 
note  1,  supra. 

3  Par.  946,  A.K. 

■lib.  942.   A  punishment  of  confinement  in  a  penitentiary,  when 
legal,  may  be  mitigated  to  confinement  at  a  military  post. 
*  See  page  52,  par.  14,  sttpra. 
6  Par.  941,  A.  li. 


CONFINEMENT  AFTER  TRIAL.       69 

11.  "When  a  sentence  of  confinement  or  forfeiture  is  in 
excess  of  the  legal  limit,  the  part  within  the  limit  is  legal 
and  may  be  executed."  ' 

12.  ''The  time  at  which  a  dishonorable  discharge  is  to 
take  effect,  as  fixed  by  a  sentence,  can  not  be  postponed 
by  the  reviewing  officer."  ^ 

13.  "A  sentence  to  confinement,  with  or  without  for- 
feiture of  pay,  can  not  become  operative  prior  to  the  date 
of  confirmation.  If  it  be  proper  to  take  into  considera- 
tion the  length  of  confinement  to  which  the  prisoner  has 
been  subjected  previous  to  such  confirmation,  it  may  be 
done  by  mitigation  of  sentence."'' 

14.  ''An  order  remitting  a  forfeiture  of  pay  operates 
only  on  the  pay  to  become  due  subsequent  to  the  date  of 
the  order."-* 

15.  "  The  order  promulgating  the  proceedings  of  a  court 
and  the  action  of  the  reviewing  authority  will,  when 
practicable,  be  of  the  same  date.  When  this  is  not  prac- 
ticable, the  order  will  give  the  date  of  the  action  of  the 
reviewing  authority  as  the  date  of  the  beginning  of  the 
sentence.  This  does  not  apply  to  sentences  of  forfeiture 
of  all  pay  and  allowances.  A  soldier  awaiting  result  of 
trial  will  not  be  paid  before  theresult  is  known."  ^ 

16.  Proceedings  of  general  courts-martial  in  cases  of 
officers  and  in  important  cases  of  enlisted  men  will  be 
published  in  general  orders.  Unimportant  cases  of 
enlisted  men  will  be  published  in  special  orders.  ^ 

CONFINEMENT  AFTER  TRIAL. 

1.  "Enlisted  men  serving  sentences  of  confinement, 
not  involving  dishonorable  discharge,  will  be  designated 
'garrison  prisoners;'  those  sentenced  to  dishonorable 
discharge,  '  general  prisoners.' "  ^ 

1  Par. 943,  A. R.        '•lb.  952. 

2  lb.  950.  5  lb.  945. 

3  lb.  947.  *  For  form  for  special  order,  see  page  146,  infra. 

7  Par.  903.  A.  R. 


70  MANUAL   FOR   COURTS-MARTIAL. 

2.  Prisoners  undergoiug  sentence  of  general  court-mar- 
tial, and  those  confined  for  serious  offenses  will,  if  prac- 
ticable, l)e  kept  apart  from  those  confined  by  sentence  of 
an  inferior  court,  or  for  minor  offenses.  General  pris- 
oners will  not  be  confined  with  other  prisoners  except 
in  case  of  necessity.' 

3.  ''  Prisoners  will  not  be  placed  in  irons  except  under 
sentence  of  court-martial,  or  in  the  extraordinary  case 
of  a  prisoner  who,  in  the  judgment  of  the  commanding 
officer,  is  a  desjierate  or  dangerous  character,  and  in  each 
such  case  report  of  action  and  the  circumstances  will  be 
immediately  made  to  the  department  commander.  A 
prisoner  may  be  shackled  or  handcuffed  while  being  trans- 
ported from  one  post  to  another,  or  from  a  post  to  a 
penitentiary  when,  in  the  judgment  of  the  officer  in 
charge,  the  escape  of  the  j^risoner  can  not  otherwise  be 
prevented."  ^ 

4.  "Prisoners  will  be  forwarded  from  places  where 
tried  to  posts  at  which  they  are  sentenced  to  serve  con- 
finement only  on  orders  of  department  commanders  or 
higher  authority.  The  strength  of  guards  to  accompany 
them  will  be  limited  to  the  necessities  of  safe  delivery. 
The  commanding  officer  of  a  post  from  which  a  prisoner 
is  transferred  will  send  under  seal  to  the  commanding 
officer  of  the  post  where  the  sentence  of  confinement  is 
to  be  executed  the  following  papers  in  his  case,  viz : 
Discharge  paj)ers,  if  discharged,  descriptive  list,  orders 
jiromulgating  and  modifying  sentences,  statement  of  con- 
duct while  under  sentence  to  date  of  transfer,  and  a  list  of 
clothing  in  possession  of  the  prisoner  when  forwarded."  ^ 

5.  "All  serviceable  clothing  which  belongs  to  a  prisoner, 
and  his  blankets,  will  accompany  him  to  the  post  desig- 
nated for  his  confinement,  and  will  be  fully  itemized  on 
the  clothing  list  mentioned  in  the  preceding  paragraph. 

'  Par.  907,  A.  R.    For  special  rules  relating  to  prisoners,  see  Gr.  O. 
55,  A.  G.  O.,  1895. 
2  Par.  909,  A  R. 
8Ib.  911. 


CONFINEMENT  AFTER  TRIAL.      71 

The  guard  in  charge  of  the  prisoner  during  transfer  will 
be  furnished  with  a  duplicate  of  this  list  and  will  be 
held  responsible  for  the  delivery  of  all  articles  itemized 
therein,  with  the  prisoner.  At  least  one  serviceable 
woolen  blanket  will  be  sent  with  every  such  prisoner  so 
transferred."^ 

6.  "The  personal  effects  of  military  prisoners  who 
have  escaped  from  confinement,  except  such  as  possess 
some  special  value  as  keepsakes,  may  be  disposed  of  by 
sale  as  in  the  case  of  effects  of  deceased  soldiers,  and  the 
proceeds  thereof,  together  with  any  money  left  by  the 
prisoner  in  the  hands  of  the  company  commander,  be 
turned  over  to  a  paymaster,  who  should  account  for  the 
same  in  the  manner  provided  for  paymasters'  collections. 
The  officer  will  take  the  paymaster's  receipt  for  the  amount 
paid  him  and  forward  the  same  to  the  Auditor  for  the 
War  Department."  ^ 

7.  "Prisoners  will  be  allowed  in  abatement  of  their 
terms  of  conlinemeut  five  days  for  each  period  of  twenty- 
five  days  during  the  whole  of  which  their  conduct  has 
been  good;  but  abatements  thus  earned  may  be  forfeited, 
either  in  whole  or  in  part,  by  subsequent  misconduct. 
Such  forfeitures  are  determined  by  the  commanding  offi- 
cer of  the  post  where  a  prisoner  is  confined."^* 

8.  "When  the  date  for  the  commencement  of  a  term  of 
confinement  imposed  by  sentence  of  a  court-martial  is 
not  expressly  fixed  by  the  sentence,  the  term  of  confine- 
ment begins  on  the  date  of  the  order  promulgating  it. 
The  sentence  is  continuous  until  the  term  expires,  except 
when  the  person  sentenced  is  absent  without  authority."  * 
The  word  days,  in  a  sentence  of  confinement,  means 
periods  of  twe^jity-four  hours,  counting  from  guard- 
mounting  on  the  first  day  of  the  sentence. 

9.  "When  soldiers  awaiting  result  of  trial  or  undergo- 
ing sentence  commit  off"enses  for  which  they  are  tried, 
the  second  sentence  will  be  executed  upon  the  expiration 
of  the  first.  "-^ 


» Par.  912,  A.  R.  nh.  915.  eib.  948. 

«Ib.913.  *  lb.  944. 


72  MANUAL  FOR   COURTS-MARTIAL. 

10.  ''A  general  prisoner,  when  released  from  confinement 
at  a  post,  will  be  carefully  examined  and  a  record  of  all 
marks,  scars  and  pliysical  peculiarities  made  by  a  medi- 
cal officer  on  the  outline  figure  card  used  in  the  examina- 
tion of  recruits,  which  the  medical  officer  will  forward 
direct  to  the  Surgeon-General."  i 

HABEAS  CORPUS. 

1.  ''Officers  will  make  respectful  returns  in  writing  to 
all  w^rits  of  habeas  corpus  served  on  them.  When  the 
writ  is  issued  by  a  State  authority,  and  the  person  held 
by  the  army  officer  is  a  civilian  who  has  been  appre- 
hended under  a  warrant  of  attachment  to  betaken  before 
a  court-martial  to  testify  as  a  witness,  the  officer  will  not 
produce  the  bodj^,  but  will,  by  his  return,  set  forth  fully 
the  authority  by  which  he  holds  the  person,  and  allege 
that  the  State  authority  is  without  jurisdiction  to  issue 
the  writ  of  habeas  corpus,  and  ask  to  have  the  same  dis- 
missed. He  will  also  exhibit  to  the  court  or  officer  issu- 
ing the  writ  of  habeas  corpus  the  warrant  of  attachment 
and  the  subpoena  (and  the  proof  of  the  service  of  the  sub- 
prona)  on  which  the  warrant  of  attachment  was  based, 
and  also  a  certified  copy  of  the  order  convening  the  court- 
martial  before  which  he  had  been  commanded  to  take  the 
person."  2 

2.  ''Should  a  writ  of  habeas  corpus  issued  by  a  State 
court  or  judge  be  served  upon  an  army  officer  com- 
manding him  to  produce  an  enlisted  man  or  show  cause 
for  his  detention,  the  officer  will  decline  to  produce  in 
court  the  body  of  the  person  named  in  the  writ,  but  will 
make  respectful  return^  in  writing  to  the  effect  that  the 
man  is  a  duly  enlisted  soldier  of  the  United  States,  and 
that  the  Supreme  Court  of  the  United  States  has  decided 
that  a  magistrate  or  court  of  a  State  has  no  jurisdiction 
in  such  a  case."  ' 

>  Par.  914,  A.H.  '  For  form,  see  page  146,  infra. 

2  lb.  969.  iPar.  970,  A.  R. 


DISPOSITION  OF  RECORDS.  73 

3.  '*  A  writ  of  habeas  corpus  issued  by  a  United  States 
court  or  judge  will  be  promptly  complied  with.  The 
person  alleged  to  be  illegally  restrained  of  his  liberty 
will  bo  taken  before  the  court  from  which  the  writ  has 
issued,  and  a  return '  made  setting  forth  the  reasons  for  his 
restraint.  The  officer  upon  whom  such  a  writ  is  served 
will  at  once  report  the  fact  of  such  service  direct  to  the 
Adjutant-General  of  the  Army  by  telegraph."^ 

DISPOSITION  OF  RECORDS. 

1.  The  Judge-Advocate-General  revises  anfl  is  the  cus- 
todian of  the  records  of  the  proceedings  of  all  general 
courts-martial.^  The  original  records  of  proceedings,  with 
the  decisions  and  orders  of  the  reviewing  authorities  made 
thereon,  and  also  the  records  of  proceedings  of  all  general 
courts  which  require  confirmation  by  the  President  but 
which  have  not  been  appointed  by  him,  will  be  forwarded 
direct  to  the  Judge-Advocate-General.  One  copy  of  the 
order  promulgating  the  action  of  the  court,  and  a  copy 
of  every  subsequent  order  aftecting  the  case,  will  be  for- 
warded to  the  Judge-Advocate-General,  with  the  record 
of  each  case.  When  more  than  one  case  is  embraced  in  a 
single  order,  a  sufficient  number  of  copies  will  be  for- 
warded to  enable  one  to  be  filed  with  each  record.  The 
proceedings  of  all  courts  appointed  by  the  President  will 
be  sent  direct  to  the  Secretary  of  War.'' 

2  "Applications  of  officers,  enlisted  men^  and  military 
prisoners  for  copies  of  proceedings  of  general  courts- 
martial,  to  be  furnished  them  under  the  114th  article  of 
war,  will,  when  received  by  post  or  other  commanders, 
be  forwarded  direct  to  the  Judge- Advocate-General."^ 

3.  "  Communications  relating  to  proceedings  of  military 
courts  on  file  in  the  Judge-Advocate-Generars  depart- 
ment will  be  addressed  ar^d  forwarded  direct  by  depart- 
ment commanders  to  the  Judge-Advocate-General.  In 
routine  matters,  the  Judge-Advocate-General  and  judge- 
advocates  may  correspond  with  each  other  direct." ^ 


^  For  form  see  page  148,  infra.  4Par.  892,  A.  R. 

»Par.  971,  A.R.  « lb.  894. 

3  Sec.  1199.   E.  S. ;  par.  890,  A.  R.  6Ib.895. 

4644 4 


74  MANUAL  FOR   COURTS-MARTIAL. 

4.  Judge-advocates  of  departments  are  the  custodians  of 
the  reports  of  cases  tried  hy  summary  courts '  and  of  all 
proceedings  of  garrison  or  regimental  courts-martial. ^ 

5.  Post  and  other  commanders  will,  on  the  last  day  of 
each  month,  make  a  report  to  the  department  headquar- 
ters of  the  number  of  cases  determined  hy  summary  court 
during  the  month,  setting  forth  the  offenses  committed 
and  the  penalties  awarded.''  They  will  also  forward, 
Avithout  delay,  to  department  headquarters  all  complete 
proceedings  of  garrison  or  regimental  courts-martial.^ 

6.  The  reports  of  cases  tried  hy  summary  courts  and 
records  of  other  inferior  courts  will  be  filed  in  the  office 
of  the  judge  advocate  at  the  headquarters  of  the  depart- 
ment commander  in  whose  department  the  courts  were 
held,  for  two  years,  at  the  end  of  which  time  they  may  be 
destroyed.  "• 

"Act  of  Oct.  1,  1890,  establishing  the  summary  court;  see  page  109' 
infra. 
2Act  of  Mar.  3,  1877.  «Par.  956,  A.  R. 

3Act  of  Oct.  1,  1890.  'Act  of  Mar.  3,  1877. 


INFERIOR  COURTS-MARTIAL. 

THE  SUMMARY  COURT.  ' 

1.  Composition. — The  summary  court  is  composed  of 
but  one  officer — the  ?w«e  officer  second  in  rank  at  the  post  or 
station,  or  of  the  command  of  the  accused.  At  stations 
where  only  staff  officers  are  on  duty,  the  second  in  rank 
is  the  court;-  and  when  but  one  officer  is  present  with  a 
command,  he  hears  and  determines  such  cases  as  require 
summary  action,^  except  when  he  is  the  accuser  or  the 
accused  requests  a  trial  by  court-martial.^ 

2.  An  officer  can  not  act  as  court  and  accuser  in  the 
same  case.  When  the  second  in  rank  is  the  accuser,  the 
post  commander  must  try  the  case,  unless  the  accused 
demands  a  trial  by  court-martial.  When  the  post  com- 
mander is  the  accuser  and  the  only  officer  present,  the 
case  must  necessarily  go  to  a  regimental  or  garrison 
court-martial.^  This  is  not  confined  to  offenses  com- 
mitted in  the  presence  of  the  post  commander. 

3.  Constitution. — No  order  is  necessary  for  the  appoint- 
ment of  a  summary  court.  The  officer  who  acts  as  the 
court  is  constituted  such  by  law  for  the  hearing  of  cases 
within  the  jurisdiction  of  a  summary  court,  and  charges 
are  referred  to  him  for  trial  accordingly. 

4.  Jurisdiction. — The  summary  court  has  jurisdiction 
only  in  time  of  peace."^ 

'  Established  by  act  of  Oct.  1,  1890;  see  page  109,  infra. 
2  Line  officers  on  regimental  or  post  staff  duty  are  not  staff  officers 
within  the  meaning  of  the  summary  court  act. 
3 This  duty  is  obligatory. 
*  Act  of  Oct.  1, 1890;  see  page  109,  infra. 
»Ib. 

75 


76  MANUAL  FOR   COURTS-MARTIAL. 

5.  As  regards  persons,  the  summary  court  can  not  legally 
try  officers,  cadets, ^  or  candidates  for  promotion;-  nor 
can  noncommissioned  officers  above  the  rank  of  corporal 
be  brought  to  trial,  if  they  object  thereto,  before  any 
inferior  court-martial,  without  the  authority  of  the  offi- 
cer competent  to  order  their  trial  by  general  court-mar- 
tial.=^  Over  all  other  eulisted  men  the  court  has  jurisdic- 
tion; but  any  enlisted  man  charged  with  an  offense  and 
brought  before  a  summary  court  may,  if  he  so  desires, 
object  to  trial  by  such  court  and  request  trial  by  court- 
martial,  which  request  must  be  granted  as  of  right. "• 

6.  As  regards  offenses,  the  summary  court  has  no  juris- 
diction over  those  i^uuishabJe  with  death,  nor  over  such 
as  are  punishable  under  the  order  of  the  President  pre- 
scribing limits  of  punishment,^  or  the  custom  of  the  ser- 
vice, with  a  punishment  exceeding  the  power  of  this  court 
to  award,  namely,  confinement  at  hard  labor  and  forfeiture 
of  pay  for  one  month. *^ 

7.  If  a  summary  court,  when  a  case  has  been  referred 
to  it,  deems  that  it  has  no  jurisdiction  over  either  the 
offense  or  person,  the  case  will  be  returned  to  the  com- 
manding officer  with  a  statement  of  the  reasons  on 
which  the  decision  is  based.  The  commanding  officer 
may  return  the  case  to  the  court  for  reconsideration, 
giving  reasons  therefor;  but  if  the  summary  court  still 
decides  that  it  is  without  jurisdiction,  the  case  (if  it  is 
to  be  tried)  must  be  referred  to  a  general  court. 

8.  As  regards  time  of  trial,  the  jurisdiction  of  a  summary 
court  is  not  affected  by  the  time  when  cases  are  brought 
before  it,  the  requirement  of  the  law  as  to  time  being  di- 
rectory only.  The  commanding  officer,  and  not  the  court, 
will  determine  when  and  what  cases  will  be  brought  before 
it.    Delay  in  the  trial  of  a  soldier  does  not  invalidate  the 

'  Sec.  1326,  R.  S. 

•^  Act  of  July  30,  1892 ;  see  G.  0. 79,  A.  G.  O.,  1892. 

3  Par.  931,  A.  R. 

"Act  of  Oct.  1, 1890 ;  see  page  109,  infra, 

s  See  page  53,  supra. 

*  See  page  62,  supra. 


THE   SUMMARY   COURT.  77 

proceedings,  but  may  be  considered  by  the  court  in  award 
iug  sentence.! 

9.  Power. — Summary  courts  have  power  to  admiuister- 
oaths;  -  to  hear  and  determine  cases;  and,  when  satisfied 
of  the  guilt  of  an  accused  party,  to  adjudge  the  punish- 
ment to  be  inflicted.^ 

10.  Clerk. — The  necessary  summary  court  writing  will 
be  done  by  the  clerks  in  the  adjutant's  office. 

11.  Procedure. — The  accused  will  be  arraigned  and 
allowed  to  plead,  according  to  court-martial  practice.  If 
an  accused  neither  demands  a  removal  of  his  case  to  a 
court-martial,  nor  (he  being  a  non-commissioned  officer 
above  the  grade  of  corporal)  objects  to  being  brought 
before  an  inferior  court,  nor  pleads  guilty,  and  the  sum- 
mary court  officer  is  not  the  accuser,  witnesses  will  be 
sworn  and  evidence  received — the  accused  being  per- 
mitted to  testify  in  his  own  behalf  and  make  a  state- 
ment; but  the  evidence  and  statement  will  not  be  re- 
corded.^ 

12.  ''The  summary  court,  as  soon  as  trial  is  concluded, 
will  record  its  findings  and  sentence'  in  the  prescribed 
record  book  and  submit  it  to  the  post  commander,  who 
will  record  therein  his  approval  or  disapproval,  in  part 
or  whole,  with  date  and  signature.  Should  the  post  com- 
mander be  the  summary  court,  the  findings  and  sentence 
will  be  recorded  in  like  manner.'^    No  other  record  of  the 

•  Par.  935,  A.  R.  The  provision  of  the  94th  Article  of  War  relating  to 
hours  of  session  of  courts-martial  is  held  not  applicable  to  summary 
courts. 

2  This  refers  to  oaths  of  witnesses.  The  trial  officer  himself  is  not 
sworn.  The  trial  officers  of  summary  courts,  judge-advocates  of 
courts-martial,  and  judge-advocates  of  departments  have  power  to 
administer  oatli.s  for  purposes  of  military  justice  and  for  other  pur- 
poses of  military  administration.  (See  act  of  July  27,  1892.)  A  sum- 
mary court  is  not  empowered  to  issue  process  of  attachment  to  com- 
pel the  attendance  of  a  civilian  witness. 

3  Act  of  Oct.  1,  1890;  see  page  109,  infra. 

4  Par.  932,  A.  R. 

^  For  forms  for  sentences,  seepage  137,  infra. 

6 See  page  131,  infra-,  also,  page  132,  par.  2,  infra. 


78  MANUAL   F(3R   COURTS-MARTIAL. 

proceedings  will  be  kept,  and  sucli  trials  will  not  be  pub- 
lished in  orders."  ^ 

13.  Previous  Convictions. — Charges  submitted  for  trial 
by  a  summary  court  will  be  accompanied  by  evidence  of 
all  convictions  of  accused  within  the  previous  eighteen 
months,  which  evidence  will  be  furnished  if  practicable 
by  the  officer  preferring  the  charges ;  if  the  evidence  is 
contained  in  the  summary  court  record  book,  a  reference 
to  it  will  be  sufficient.  If  this  evidence  is  not  submitted 
or  cited,  the  summary  court  may  take  judicial  notice  of 
any  such  evidence  as  the  record  book  contains.'- 

14.  Whenever,  in  determining  on  its  sentence,  a  sum- 
mary court  shall  take  into  consideration  previous  convic- 
tions, a  note  of  the  number  of  such  previous  convictions 
will  be  made  on  the  summary  court  record. 

15.  Limit  of  Punishing  Power. — Summary  courts  are 
subject  to  the  restrictions  of  the  83d  Article  of  War.^ 
Under  this  article  inferior  courts-martial  may  award 
sentences  of  confinement  at  hard  labor  and  forfeiture  of 
pay  for  one  month,  and,  as  necessarily  included  in  this, 
may  sentence  noncommissioned  officers  to  be  reduced  to 
the  ranks.  This  is  the  limit  of  their  punishing  power.  For 
those  offenses  for  which  a  limit  of  punishment  has  been  pre- 
scribed, a  summary  court  is  restricted  to  the  kinds  of  punish- 
ment named,  except  as  to  the  substitution  of  confinement 
for  forfeiture  in  the  settled  ratio  given  on  page  62,  supra. 

16.  Under  the  83d  Article  of  War  an  inferior  court- 
martial  has  power  to  award  a  sentence  forfeiting  a  specific 
amount  of  money  equal  to  the  soldier's  pay,  including 
retained  pay,  for  one  month ;  but  when  the  sentence  pre- 
scribes a  forfeiture  of  pay  for  one  month  without  specify- 
ing a  fixed  amount,  or  without  expressly  including  the 
retained  pay,  the  retained  pay  is  not  forfeited. 

17.  Record. — ^' There  shall  be  a  summary  court  record 
book  or  docket  kept  at  each  military  post,  and  in  the  field 
at  the  headquarters  of  the  command,  in  which  shall  be 

1  Par.  932,  A.  R. 

2  lb.  934. 

*Ib.  936;  see,  also,  page  61,  sttpra. 


THE  SUMMARY  COURT.  79 

entered  a  record  of  all  cases  heard  and  determined  and 
the  action  had  thereon."  ' 

18.  Reviewing  Authority. — The  commanding  oflScers 
authorized  to  approve  the  sentences  of  summary  courts 
have  power  to  remit  or  mitigate  the  same.- 

19.  ''When  a  post  commander  sits  as  a  summary  court, 
no  approval  of  the  sentence  is  required  hy  law,  hut  he 
should  sign  the  sentence  as  post  commander  and  date  hie 
signature."  ^ 

20.  Instructions  for  Post  and  Other  Commanders, 
relating  to  Summary  Courts. — Charges  for  offenses  cog- 
nizahle  hy  inferior  courts  will  be  laid  before  the  post  com- 
mander, who,  if  he  thinks  the  accused  should  he  tried, 
will  cause  him  to  he  brought  before  the  summary  court. ^ 

21.  "Commanding  officers  are  not  required  to  bring 
fc^^every  dereliction  of  duty  before  a  court  for  trial,  but  will 
^endeavor  to  prevent  their  recurrence  by  admonitions, 
-Awithholding  of  privileges,  and  taking  such  steps  as  may 
^|)e  necessary  to  enforce  their  orders.'"^  It  is  believed 
".^•Ahat  the  proper  use  of  this  power  will  make  it  unneces- 

-  §"sary  to   bring   before  the  summary  court  many  of  the 

''^trifling  delinquencies  which  are  now  made  the  subject  of 

"^ trial;  indeed,   that  such  trifling  delinquencies  will  in 

^great  measure  be  prevented.     Department  commanders 

will  see  that  their  subordinate  commanding  officers  fulfill 

their  duties  in  this  regard. 

22.  ''The  summary  court  will  be  opened  at  a  stated 
hour  every  morning  except  Sunday, '^  for  the  trial  of  such 
cases  as  may  properly  be  brought  before  it.  Trials  will 
be  had  on  Sunday  only  when  the  exigencies  of  the  service 
make  it  necessary."  ^ 

'  Act  of  Oct.  1,  1890 ;  vsee  page  109,  infra.    For  form  for  record  book, 
see  page  131,  infra. 
2Act  of  July  27, 1S92 ;  see  G.  O.  57,  A.  G.  O.,  1892. 
3Par.933.A.R. 

4  lb.  932. 

5  lb.  930. 

"  If  it  be  understood  that  the  court  shall  not  sit  on  Sunday,  the 
officer  charged  with  the  duty  of  bringing  ottenders  before  it  will  com- 
ply with  his  duty  by  doing  so  at  the  first  session  of  the  court  there- 
after. 'Par.  935.  A.  R. 


80  MANUAL   FOR   COURTS-MARTIAL. 

23.  ''Post  commanders  will  furnish  company  and  other 
commanders  with  copies  of  the  summary  court  record 
relating  to  men  of  their  commands,  said  copies  to  he 
certified  to  he  true  copies  hy  the  post  commander  or 
adjutant." ' 

24.  The  name  of  each  officer  at  a  post  who  has  acted 
as  a  summary  court  will  ho  reported  on  the  post  return, 
with  dates. 

THE  FIELD  OFFICER'S  COURT. 

1.  Composition.— The  field  officer's  court  is  composed 
of  a  single  oflicer — a  field  officer  of  the  regiment  to  which 
the  accused  belongs. - 

2.  Constitution.— A  field  officer's  court  will  he  detailed 
by  the  brigade  commander,  or,  in  case  there  be  no  brigade 
commander,  by  the  commandingofflcerof  thepostorcamp. 

3.  Jurisdiction.^The  jurisdiction  of  the  field  officer's 
court  is  limited  to  time  of  war.  Except  that  tliis  court 
has  jurisdiction  only  over  offenders  belonging  to  the  regi- 
ment of  the  field  officer  of  which  it  is  composed,  its  juris- 
diction and  liuuishing  power  are  the  same  as  those  of  a 
summary  court. 

4.  Procedure. — The  procedure  of  a  field  officer's  court 
is  similar  to  that  of  a  summary  court.  The  field  officer 
hears  and  determines  cases  and  usually  keeps  the  record 
himself.  A  form  of  record  of  a  field  officer's  court  is  given 
on  page  133,  infra. 

5.  Reviewing  Authority. — No  sentence  of  a  field  offi- 
cer's court  can  be  executed  until  the  same  has  been  ap- 
proved by  the  brigade  commander,  or,  in  case  there  be 
no  T)rigade  commander,  by  the  commanding  officer  of  the 
post  or  camp.-'  When,  therefore,  a  regiment,  in  time  of 
war,  is  a  part  of  neitlier  a  brigade  nor  a  post  or  camp 
command,  a  regimental  or  a  garrison  court-martial  will 
be  resorted  to. 

iPar.932,A.R. 
280th  A.  W. 

3 110th  A.  W.,  as  amended  by  tlie  act  of  July  27, 1892 ;  see  page  104 
nfra. 


THE   aARRISON  COURT-MARTIAL.  81 

6.  The  power  of  the  reviewing  authority  of  a  fiehl  offi- 
cer's court  is  restricted  to  approval  or  disapproval  of  the 
sentence.' 

THE  GARRISON  COURT-MARTIAL.. 

1.  Composition. — A  garrison  court-martial  is  composed 
of  three  members-  and  a  judge-advocate.  The  remarks 
regarding  the  eligibility  of  officers  for  court-martial  duty 
on  page  9,  paragraphs  1-3,  supra,  apply  to  garrison  courts. 

2.  Constitution. — Every  officer  commanding  a  gar- 
rison, fort,  or  other  place  where  the  troops  consist  of 
different  corps  may  appoint  garrison  courts. =*  The  term 
''other  place"  includes  any  locality  whatever  where  the 
command  may  be,  whether  in  garrison  or  in  the  field.  To 
fulfill  the  requirement  regarding  '' difierent  corps,"  it  is 
sufficient  if  there  be  on  duty  in  the  command  a  single 
officer  or  soldier  of  another  arm  of  service  than  that  of 
which  the  main  body  is  composed. 

3.  Jurisdiction,  etc. — In  time  of  peace,  a  garrison  court- 
martial  has  jurisdiction  upon  request  of  the  accused, 
wheu  brought  before  a  summary  court, ^  or  when  the  offi- 
cer acting  as  summary  court  is  the  accuser  and  the  only 
officer  present  with  the  command.  The  only  other  case 
Avhen  a  garrison  conrt-martial  can  be  convened  in  time  of 
peace  is  when  the  composition  of  the  command  is  such 
that  the  summary  court  act  does  not  apply.  Whenever, 
under  an3'^  of  these  circumstances,  it  becomes  necessary  to 
convene  a  garrison  court-martial,  the  order  appointing  it 
will  state  the  fact  which  brings  the  case  within  the  ex- 
ceptions of  the  law.s 

4.  In  time  of  war,  the  garrison  court-martial  has  juris- 
diction only  when  the  field  officer's  court  has  not,  or  when 
no  field  officer  can  be  detailed. 

1  See  110th  and  112th  A.  W. 

«82dA.  W. 

«lb. 

*  Act  of  Oct.  1,  1890;  see  page  109,  infra. 

5  Par.  937,  A.  R.    For  form  for  order  and  record,  see  page  134,  infra. 

4644 4* 


82  MANUAL  FOR   COURTS-MARTIAL. 

5.  What  has  been  said  of  the  jurisdiction  of  summary 
courts  as  regards  persons,  offenses  and  the  '^  limit  of  pun- 
ishing power  "  applies  equally  to  garrison  courts-martial. 
In  other  respects  the  general  remarks  heretofore  made 
regarding  the  president,  members,  judge-advocate,  organ- 
ization, order  of  procedure,  etc.,  of  courts-martial  apply 
to  garrison  courts,  except  when  the  general  conrt  is  spe- 
cially mentioned. 

THE  REGIMENTAL  COURT-MARTIAL.' 

1.  Composition. — The  regimental,  like  the  garrison 
court-martial,  is  composed  of  three  members  and  a  judge- 
advocate;  but  in  case  of  the  regimental  court  only  offi- 
cers of  the  offender's  regiment  or  corps  are  eligible  for 
detail  on  the  court.^ 

2.  Constitution. — Every  officer  commanding  a  regi- 
ment or  corps  may  appoint  a  regimental  court-martial.=^ 
The  word  ''  Corps''  includes  the  Corps  of  Engineers,  the 
Ordnance  and  the  Signal  Corps. 

3.  Jurisdiction. — With  the  exception  that  the  regi- 
mental court-martial  has  jurisdiction  only  over  offenders 
belonging  to  the  regiment  or  corps  from  which  the  court  is 
composed,  what  has  been  said  of  the  jurisdiction,  punish- 
ing i^ower,  and  jirocedure  of  garrison  courts  applies 
equally  to  regimental  courts.'' 

>  See  page  89,  note  1,  infra. 
*81st  A.  W. 
3  lb. 

''Regarding  order  for  regimental  court,  see  par.  937  A.  R.,  and  for 
form  for  record,  see  page  130,  infra. 


ARTICLES  OF  WAR. 

Section  1342,  R.  S.  The  armies  of  the  United  States 
shall  be  goverued  by  the  following  rules  and  articles.  The 
word  officer,  as  used  therein,  shall  be  understood  to  des- 
ignate commissioned  officers;  the  word  soldier  shall  bo 
understood  to  include  noncommissioned  officers,  musi- 
cians, artificers,  aud  privates,  and  other  enlisted  men, 
and  the  convictions  mentioned  therein  shall  be  under- 
stood to  be  convictions  by  court-martial. 

AuTiCLE  1.  Every  officer  now  in  the  Arm^^  of  the  United 
States  shall,  within  six  months  from  the  passing  of  this 
act,  and  every  officer  hereafter  appointed  shall,  before  ho 
enters  upon  the  duties  of  his  office,  subscribe  these  rules 
and  articles. 

Art.  2.  These  rules  and  articles  shall  be  read  to  every 
enlisted  man  at  the  time  of,  or  within  six  days  after,  his 
enlistment,  and  he  shall  thereupon  take  nn  oath  or  affir- 
mation, in  the  following  form:  "I,  A.  B.,  do  solemnly 
swear  (or  affirm)  that  I  will  bear  true  faith  and  alle- 
giance to  the  United  States  of  America;  that  I  will  serve 
them  honestly  and  faithfully  against  all  their  enemies 
whomsoever ;  and  that  I  will  obey  the  orders  of  the  Presi- 
dent of  the  United  States,  and  the  orders  of  the  officers 
appointed  over  me,  according  to  the  rules  and  articles 
of  war."  This  oath  may  be  taken  before  any  commis- 
sioned officer  of  the  Army. 


84  MANUAL  FOR  COURTS-MAETIAL. 

Art.  3.  Every  officer  who  knowingly  enlists  or  mus- 
ters into  the  military  service  any  minor  over  the  age  of 
16  years  without  the  written  consent  of  his  parents  or 
guardians,  or  any  minor  under  the  age  of  16  years,  or 
any  insane  or  intoxicated  persons,  or  any  deserter  from 
the  military  or  naval  service  of  the  United  States,  or  any 
person  who  has  heen  convicted  of  any  infamous  criminal 
offense,  shall,  upon  conviction,  be  dismissed  from  the  serv- 
ice, or  suffer  such  other  punishment  as  a  court-martial 
may  direct. 

Art.  4.  No  enlisted  man,  duly  sworn,  shall  be  discharged 
from  the  service  without  a  discharge  in  writing,  signed 
by  a  field  officer  of  the  regiment  to  which  he  belongs,  or 
by  the  commanding  officer,  when  no  field  officer  is  pres- 
ent ;  and  no  discharge  shall  be  given  to  any  enlisted  man 
before  his  term  of  service  has  expired,  except  by  order  of 
the  President,  the  Secretary  of  War,  the  commanding 
officer  of  a  department,  or  by  sentence  of  a  general  court- 
martial. 

Art.  5.  Any  officer  who  knowingly  musters  as  a  soldier 
a  person  who  is  not  a  soldier  shall  be  deemed  guilty  of 
knowingly  making  a  false  muster,  and  punished  accord- 
ingly. 

Art.  6.  Any  officer  who  takes  money,  or  other  thing, 
by  way  of  gratification,  on  mustering  any  regiment, 
troop,  battery,  or  company,  or  on  signing  muster  rolls, 
shall  be  dismissed  from  the  service,  and  shall  thereby  be 
disabled  to  hold  any  office  or  employment  in  the  service 
of  the  United  States. 

Art.  7.  Every  officer  commanding  a  regiment,  an  inde- 
pendent troop,  battery,  or  company,  or  a  garrison,  shall, 
in  the  beginning  of  every  month,  transmit  through  the 
proper  channels,  to  the  Department  of  War,  an  exact 
return  of  the  same,  specifying  the  names  of  the  officers 
then  absent  from  their  posts,  with  the  reasons  for  and 
the  time  of  their  absence.  And  any  officer  who,  through 
neglect  or  design,  omits  to  send  such  returns,  shall,  on 
conviction  thereof,  be  punished  as  a  court-martial  may 
direct. 


ARTICLES   OF  WAR.  85 

Art.  8.  Every  officer  who  knowingly  makes  a  false 
return  to  the  Department  of  War,  or  to  any  of  his  supe- 
rior officers,  authorized  to  call  for  such  returns,  of  the 
state  of  the  regiment,  troop  or  company,  or  garrison 
under  his  command;  or  of  the  arms,  ammunition,  cloth- 
ing or  other  stores  thereunto  belonging,  shall,  on  con- 
viction thereof  before  a  court-martial,  be  cashiered.' 

Art.  9.  All  public  stores  taken  from  the  enemy  shall 
be  secured  for  the  service  or  the  United  States;  and  for 
neglect  thereof  the  commanding  officer  shall  be  answer- 
able. 

Art.  10.  Every  officer  commanding  a  troop,  battery,  or 
company,  is  charged  with  the  arms,  accoutrements,  am- 
munition, clothing,  or  other  military  stores  belonging  to 
his  command,  and  is  accountable  to  his  colonel  in  case  of 
their  being  lost,  spoiled,  or  damaged  otherwise  than  by 
unavoidable  accident,  or  on  actual  service. 

Art.  11.  Every  officer  commanding  a  regiment  or  an 
independent  troop,  battery,  or  company,  not  in  tlie  field, 
may,  when  actually  quartered  with  such  command,  grant 
furloughs  to  the  enlisted  men,  in  such  numbers  and  for 
such  time  as  he  shall  deem  consistent  with  the  good  of 
the  service.  Every  officer  commanding  a  regiment,  or  an 
independent  troop,  battery,  or  company,  in  the  field,  may 
grant  furloughs  not  exceeding  thirty  days  at  one  time,  to 
five  per  centum  of  the  enlisted  men,  for  good  conduct  in 
the  line  of  duty,  but  subject  to  the  approval  of  the  com- 
mander of  the  forces  of  which  said  enlisted  men  form  a 
part.  Every  company  officer  of  a  regiment,  commanding 
any  troop,  battery,  or  company  not  in  the  field,  or  com- 
manding in  any  garrison,  fort,  post,  or  barrack,  may,  in 
the  absence  of  his  field  officer,  grant  furloughs  to  the 
enlisted  men,  for  a  time  not  exceeding  twenty  days  in  six 
months,  and  not  to  more  than  two  persons  to  be  absent 
at  the  same  time. 

1'  Caahiered"  and  "  dismissed  from  the  service  "  are  now  consid- 
ered practically  synonymous. 


86  MANUAL  FOR   COURTS-MARTIAL. 

Art.  12.  At  every  muster  of  a  regiment,  troop,  battery, 
or  company,  the  commandiDg  officer  thereof  shall  give  to 
the  mustering  officer  certificates,  signed  by  himself,  stat- 
ing how  long  absent  officers  have  been  absent  and  the 
reasons  of  their  absence.  And  the  commanding  officer  of 
every  troop,  battery,  or  company  shall  give  like  certifi- 
cates, stating  how  long  absent  noncommissioned  officers 
and  private  soldiers  have  been  absent  and  the  reasons  of 
their  absence.  Sucli  reasons  and  time  of  absence  shall 
be  inserted  in  the  muster  rolls  opposite  the  names  of  the 
respective  absent  officers  and  soldiers,  and  the  certifi- 
cates, together  with  the  muster  rolls,  shall  be  transmitted 
by  the  mustering  officer  to  the  Department  of  War,  as 
speedily  as  the  distance  of  the  place  and  muster  will 
admit. 

Art.  13.  Every  officer  who  signs  a  false  certificate,  relat- 
ing to  the  absence  or  pay  of  an  officer  or  soldier,  shall  be 
dismissed  from  the  service. 

Art.  14.  Any  officer  who  knowingly  makes  a  false  mus- 
ter of  man  or  horse,  or  who  signs,  or  directs,  or  allows 
the  signing  of  any  muster  roll,  knowing  the  same  to  con- 
tain a  false  muster,  shall,  upon  proof  thereof  by  two 
witnesses,  before  a  court-martial,  be  dismissed  from  the 
service,  and  shall  thereby  be  disabled  to  hold  any  office 
or  employment  in  the  service  of  the  United  States. 

Art.  15.  Any  officer  who,  willfully  or  through  neglect, 
suffers  to  be  lost,  spoiled,  or  damaged,  any  military  stores 
belonging  to  the  United  States,  shall  make  good  the  loss 
or  damage,  and  be  dismissed  from  the  service. 

Art.  16.  Any  enlisted  man  who  sells,  or  willfully  or 
through  neglect  Avastes  the  ammunition  delivered  out  to 
him,  shall  be  punished  as  a  court-martial  may  direct. 

Art.  17.  Any  soldier  who  sells  or  through  neglect  loses 
or  spoils  his  horse,  arms,  clothing,  or  accoutrements  shall 
be  punished  as  a  court-martial  may  adjudge,  subject  to 
such  limitation  as  may  be  prescribed  by  the  President  by 
virtue  of  the  power  vested  in  him.^ 

J  17th  A.  W.,  as  amended  by  act  of  July  27,  1892;  see  G.  O.  57, 
A.  G.  O.,  1892. 


ARTICLES  OF  WAR.  87 

Art.  18.  Any  officer  commanding  in  any  garrison,  fort, 
or  barracks  of  the  United  States  wlio,  for  his  private 
advantage,  lays  any  duty  or  imposition  upon,  or  is  in- 
terested in,  the  sale  of  any  victuals,  liquors,  or  other 
necessaries  of  life,  brought  into  such  garrison,  fort,  or 
barracks,  for  the  use  of  the  sohliers,  shall  be  dismissed 
from  the  service. 

Art.  19.  Any  officer  who  uses  contemptuous  or  disre- 
spectful words  agaiust  the  President,  the  Vice-President, 
the  Congress  of  the  United  States,  or  the  chief  magis- 
trate or  legislature  of  any  of  the  United  States  in 
which  he  is  quartered,  shall  be  dismissed  from  the  serv- 
ice, or  otherwise  punished,  as  a  court-martial  may  direct. 
Any  soldier  who  so  offends  shall  be  punished  as  a  court- 
martial  may  direct. 

Art.  20.  Any  officer  or  soldier  who  behaves  himself 
with  disrespect  toward  his  commanding  officer  shall  be 
punished  as  a  court-martial  may  direct. 

Art.  21.  Any  officer  or  soldier  who,  on  any  pretense 
whatsoever,  strikes  his  superior  officer,  or  draws  or  lifts 
up  any  weapon,  or  offers  any  violence  against  him,  being 
in  the  execution  of  his  office,  or  disobeys  any  lawful  com- 
mand of  his  superior  officer,^  shall  suffer  death,  or  such 
other  punishment  as  a  court-martial  may  direct. 

Art.  22.  Any  officer  or  soldier  who  begins,  excites, 
causes,  or  joins  in  any  mutiny  or  sedition,  in  any  troop, 
battery,  company,  party,  post,  detachment,  or  guard, 
shall  suffer  death,  or  such  other  punishment  as  a  court- 
martial  may  direct. 

Art.  23.  Any  officer  or  soldier  who,  being  present  at  any 
mutiny  or  sedition,  does  not  use  his  utmost  endeavor  to 
suppress  the  same,  or  having  knowledge  of  any  iutended 
mutiny  or  sedition,  does  not,  without  delay,  give  infor- 
mation thereof  to  his  commanding  officer,  shall  suffer 
death,  or  such  other  punishment  as  a  court-martial  may 
direct. 

'  Disobedience  of  an  order  of  a  noncommissioned  officer  should  be 
charged  under  the  62d  article;  see  form  13,  page  115,  infra. 


88  MANUAL  FOR   COURTS-MATITIAL. 

Art.  24.  All  officers,  of  what  condition  soever,  have 
power  to  part  and  qnell  all  quarrels,  frays,  and  disorders, 
whether  among  persons  belonging  to  his  i  own  or  to  an- 
other corps,  regiment,  troop,  battery,  or  company,  and 
to  order  officers  into  arrest,  and  noncommissioned  officers 
and  soldiers  into  confinement,  who  take  part  in  the  same, 
until  their  proper  superior  officer  is  acquainted  there- 
with. And  whosoever,  being  so  ordered,  refuses  to  obey 
such  officer  or  noncommissioned  officer,  or  draws  a  weapon 
upon  him,  shall  be  punished  as  a  court-martial  may 
direct. 

Art.  25.  No  officer  or  soldier  shall  use  any  reproachful 
or  provoking  speeches  or  gestures  to  another.  Any  offi- 
cer who  so  offends  shall  be  put  in  arrest.  Any  soldier 
who  so  offends  shall  be  contiued,  and  required  to  ask 
pardon  of  the  party  offended,  in  the  presence  of  his  com- 
manding officer. 

Art.  26.  No  officer  or  soldier  shall  send  a  challenge  to 
another  officer  or  soldier  to  fight  a  duel,  or  accept  a  chal- 
lenge so  sent.  Any  officer  who  so  offends  shall  be  dis- 
missed from  the  service.  Any  soldier  who  so  offends 
shall  suffer  such  punishment  as  a  court-martial  may  direct. 

Art.  27.  Any  officer  or  noncommissioned  officer,  com- 
manding a  guard,  who,  knowingly  and  willingly,  suffers 
any  person  to  go  forth  to  fight  a  duel,  shall  be  punished 
as  a  challenger;  and  all  seconds  or  promoters  of  duels, 
and  carriers  of  challenges  to  fight  duels,  shall  be  deemed 
principals,  and  punished  accordingly.  It  shall  be  the 
duty  of  any  officer  commanding  an  army,  regiment,  troop, 
battery,  company,  post,  or  detachment,  who  knows  or 
has  reason  to  believe  that  a  challenge  has  been  given  or 
accepted  by  any  officer  or  enlisted  man  under  his  com- 
mand, immediately  to  arrest  the  offender  and  bring  him 
to  trial. 

Art.  28.  Any  officer  or  soldier  who  upbraids  another 
officer  or  soldier  for  refusing  a  challenge  shall  himself 
be  punished  as  a  challenger;  and  all  officers  and  soldiers 
are  hereby  discliarged  from  any  disgrace  or  opinion  of 

'  Sic  in  Kevised  Statutes. 


ARTICLES  OF  WAR.  89 

disadvantage  which  might  arise  from  their  having  re- 
fused to  accept  challenges,  as  they  will  only  have  acted 
in  obedience  to  the  law,  and  have  done  their  duty  as  good 
soldiers,  who  subject  themselves  to  discipline. 

Art.  29.  Any  officer  who  thinks  himself  wronged  by 
the  commanding  officer  of  his  regiment,  and,  ux)on  due 
application  to  such  commander,  is  refused  redress,  may 
complain  to  the  general  commanding  in  the  State  or  Ter- 
ritory where  such  regiment  is  stationed.  The  general 
shall  examine  into  said  complaint  and  take  proper  meas- 
ures for  redressing  the  wrong  complained  of;  and  he 
shall,  as  soon  as  possible,  transmit  to  the  Department  of 
War  a  true  statement  of  such  complaint,  with  the  pro- 
ceedings had  thereon. 

Art.  30.  Any  soldier  who  thinks  himself  wronged  by 
any  officer  may  complain  to  the  commanding  officer  of 
his  regiment,  who  shall  summon  a  regimental  court- 
martial  for  the  doing  of  justice  to  the  complainant. 
Either  party  may  apjjeal  from  such  regimental  court- 
martial  to  a  general  court-martial;  but  if,  upon  such 
second  hearing,  the  appeal  appears  to  be  groundless  and 
vexatious,  the  party  appealing  shall  be  punished  at  the 
discretion  of  said  general  court-martial.* 

'The  "regimental  court-martial  "  under  the  30th  A.  "W.  can  not  be 
nsed  as  a  substitute  for  a  general  court-martial  or  court  of  inquirj', 
for  it  can  not  try  an  officer  nor  make  an  investigation  for  the  purpose 
of  determining  whether  he  shall  be  brought  to  trial.  When,  if  the 
soldier's  complaint  should  be  sustained,  the  only  redress  would  be  a 
reprimand  to  the  officer,  the  matter  would  not  be  within  the  juris- 
diction of  tliis  court.  It  can  only  investigate  such  matters  as  are 
susceptible  of  redress  by  the  doing  of  justice  to  the  complainant; 
that  is,  when  in  some  way  he  can  be  set  right  by  putting  a  stop  to 
the  wrongful  condition  which  the  officer  has  caused  to  exist.  Erro- 
neous stoppages  of  pay,  irregularity  of  detail,  the  apparent  require- 
ment of  more  labor  than  from  other  soldiers,  and  the  like,  might  in 
this  way  be  investigated  and  the  wrongful  condition  put  an  end  to. 
The  court  will  in  such  cases  record  the  evidence  and  its  conclusions 
of  fact,  and  recommend  the  action  to  be  taken.  Tlie  members  of  the 
court  (and  the  judge-advocate)  will  be  sworn  faithfully  to  perform 
their  duties  as  members  (and  judge-advocate)  of  the  court,  and  the 
proceedings  will  be  recorded,  as  nearly  as  practicable,  in  tlie  same 
manner  as  the  proceedings  of  ordinary  courts-martial.     (J.  A.  G.) 


90  MANUAL  FOR  COURTS-MARTIAL. 

Art.  31.  Any  officer  or  soldier  who  lies  out  of  his  quar- 
ters, garrisou,  or  camp,  without  leave  from  his  superior 
officer,  shall  be  punished  as  a  court-martial  may  direct. 

Art.  32.  Any  soldier  who  absents  himself  from  his 
trooj),  battery,  company,  or  detachment,  without  leave 
from  his  commanding  officer,  shall  be  punished  as  a 
court-martial  may  direct. 

Art.  33.  Any  officer  or  soldier  who  fails,  except  when 
prevented  by  sickness  or  other  necessity,  to  repair,  at  the 
fixed  time,  to  the  place  of  parade,  exercise,  or  other  ren- 
dezvous appointed  by  his  commanding  officer,  or  goes 
from  the  same,  without  leave  from  his  commanding  officer, 
before  he  is  dismissed  or  relieved,  shall  be  punished  as  a 
court-martial  may  direct. 

Art.  34.  Any  soldier  who  is  found  one  mile  from  camp, 
without  leave  in  writing  from  his  commanding  officer, 
shall  be  punished  as  a  court-martial  may  direct. 

Art.  35.  Any  soldier  who  fails  to  retire  to  his  quarters 
or  tent  at  the  beating  of  retreat,  shall  be  punished  ac- 
cording to  the  nature  of  his  ofl'ense. 

Art.  36.  No  soldier  belonging  to  any  regiment,  troop, 
battery,  or  company  shall  hire  another  to  do  his  duty  for 
him,  or  be  excused  from  duty,  except  in  cases  of  sickness, 
disabilitj^,  or  leave  of  absence.  Every  such  soldier  found 
guilty  of  hiring  his  duty,  and  the  person  so  hired  to  do 
another's  duty,  shall  be  punished  as  a  court-martial  may 
direct. 

Art.  37.  Every  noncommissioned  officer  who  connives 
at  such  hiring  of  duty  shall  be  reduced.  Every  officer 
who  knows  and  allows  such  practices  shall  be  punished 
as  a  court-martial  may  direct. 

Art.  38.  Any  officer  Avho  is  found  drunk  on  his  guard, 
party,  or  other  duty,  shall  be  dismissed  from  the  service. 
Any  soldier  who  so  offends  shall  suffer  such  punishment 
as  a  court-martial  may  direct.  No  court-martial  shall 
sentence  any  soldier  to  be  branded,  marked,  or  tattooed. 

Art.  39.  Any  sentinel  who  is  found  sleeping  ujion  his 
post,  or  who  leaves  it  before  he  is  regularly  relieved. 


ARTICLES   OF   WAR.  91 

shall  suffer  death,  or  such  other  punishment  as  a  court- 
martial  may  direct. 

Art.  40.  Any  officer  or  soldier  who  quits  his  guard, 
platoon,  or  division,  without  leave  from  his  superior  offi- 
cer, except  in  a  case  of  urgent  necessity,  shall  be  punished 
as  a  court-martial  may  direct. 

Art.  41.  Any  officer  who,  by  any  means  whatsoever, 
occasions  false  alarms  in  camp,  garrison,  or  quarters, 
shall  suffer  death,  or  such  other  punishment  as  a  court- 
martial  may  direct. 

Art.  42.  Any  officer  or  soldier  who  misbehaves  himself 
before  the  enemy,  runs  away,  or  shamefully  abandons  any 
fort,  post,  or  guard,  which  he  is  commanded  to  defend,  or 
speaks  words  inducing  others  to  do  the  like,  or  casts  away 
his  arms  or  ammunition,  or  quits  his  post  or  colors  to  plun- 
der or  pillage,  shall  suffer  death,  or  such  other  punishment 
as  a  court-martial  may  direct. 

Art.  43.  If  any  commander  of  any  garrison,  fortress,  or 
post  is  compelled,  by  the  officers  and  soldiers  under  his 
command,  to  give  up  to  the  enemy  or  to  abandon  it,  the 
officers  or  soldiers  so  offending  shall  suffer  death,  or  such 
other  punishment  as  a  court-martial  may  direct. 

Art.  44.  Any  person  belonging  to  the  armies  of  the 
United  States  who  makes  known  the  watchword  to  any 
person  not  entitled  to  receive  it,  according  to  the  rules 
and  discipline  of  war,  or  presumes  to  give  a  parole  or 
watchword  different  from  that  which  he  received,  shall 
suffer  death,  or  such  other  punishment  as  a  court-martial 
may  direct. 

Art.  45.  Whosoever  relieves  the  enemy  with  money, 
victuals,  or  ammunition,  or  knowingly  harbors  or  pro- 
tects an  enemy,  shall  suffer  death,  or  such  other  punish- 
ment as  a  court-martial  may  direct. 

Art.  46.  Whosoeverholds  correspondence  with,  or  gives 
intelligence  to,  the  enemy,  either  directly  or  indirectly, 
shall  suffer  death,  or  such  other  punishment  as  a  court- 
martial  may  direct. 

Art.  47.  Any  officer  or  soldier  who,  having  received 
pay,  or  having  been  duly  enlisted  in  the  service  of  the 


92  MANUAL   FOR   COUETS-MARTIAL. 

United  States,  deserts  the  same,  shall,  in  time  of  war, 
suffer  death,  or  such  other  punishment  as  a  court-martial 
may  direct ;  and  in  time  of  j)eace,  any  punishment,  ex- 
cepting death,  which  a  court-martial  may  direct. 

Art.  48.  Every  soldier  who  deserts  the  service  of  the 
United  States  shall  be  liable  to  serve  for  such  period  as 
shall,  with  the  time  he  may  have  served  previous  to  his 
desertion,  amount  to  the  full  term  of  his  enlistment;  and 
such  soldier  shall  be  tried  by  a  court-martial  and  pun- 
ished, although  the  term  of  his  enlistment  may  have 
elapsed  previous  to  his  being  apprehended  and  tried. 

Art.  49.  Any  officer  who,  having  tendered  his  resigna- 
tion, quits  his  post  or  proper  duties,  without  leave,  and 
with  intent  to  remain  permanentlj''  absent  therefrom, 
prior  to  due  notice  of  the  acceptance  of  the  same,  shall 
be  deemed  and  punished  as  a  deserter. 

Art.  50.  No  noncommissioned  officer  or  soldier  shall 
enlist  himself  in  any  other  regiment,  troop,  or  comjiany, 
without  a  regular  discharge  from  the  regiment,  troop,  or 
company  in  which  he  last  served,  on  a  penalty  of  being- 
reputed  a  deserter,  and  suffering  accordingly.  And  in 
case  any  officer  shall  knowingly  receive  and  entertain 
such  noncommissioned  officer  or  soldier,  or  shall  not, 
after  his  being  discovered  to  be  a  deserter,  immediately 
confine  him  and  give  notice  thereof  to  the  corps  in  which 
he  last  served,  the  said  officer  shall,  by  a  court-martial, 
be  cashiered. 

Art.  51.  Any  officer  or  soldier  who  advises  or  persuades 
any  other  officer  or  soldier  to  desert  the  service  of  the 
United  States,  shall,  in  time  of  war,  suffer  death,  or  such 
other  punishment  as  a  court-martial  may  direct;  and  in 
time  of  peace,  any  punishment,  excepting  deatli,  wliich  a 
court-martial  may  direct. 

Art.  52.  It  is  earnestly  recommended  to  all  officers  and 
soldiers  diligently  to  attend  divine  service.  Any  officer 
who  behaves  indecently  or  irreverently  at  any  place  of 
divine  worsliip  shall  be  brought  before  a  general  court- 
martial,  there  to  be  publicly  and  severely  reprimanded 
by  the  president  thereof.     Any  soldier  who  so   offends 


ARTICLES  OF  WAR.  93 

shall,,  for  bis  first  offense,  forfeit  one-sixth  of  a  dollar; 
for  each  further  offense  he  shall  forfeit  a  like  sum,  and 
shall  be  confined  twenty-four  hours.  The  money  so  for- 
feited shall  be  deducted  from  bis  next  pay,  and  shall  be 
applied,  by  the  captain  or  senior  officer  of  his  troop,  bat- 
tery, or  company,  to  the  use  of  the  sick  soldiers  of  the 
same. 

Art.  53.  Any  oflicer  who  uses  any  profane  oath  or  exe- 
cration shall,  for  each  offense,  forfeit  and  pay  one  dollar. 
Any  soldier  who  so  offends  shall  incur  the  penalties  pro- 
vided in  the  preceding  article;  and  all  moneys  forfeited  for 
such  offenses  shall  be  applied  as  therein  provided. 

Art.  54.  Every  officer  commanding  in  quarters,  garri- 
son, or  on  the  march,  shall  keep  good  order,  and,  to  the 
utmost  of  his  power,  redress  all  abuses  or  disorders  which 
may  be  committed  by  any  officer  or  soldier  under  his 
command ;  and  if,  upon  complaint  made  to  him  of  officers 
or  soldiers  beating  or  otherwise  ill-treating  any  person, 
disturbing  fairs  or  markets,  or  committing  any  kind  of 
riot,  to  the  disquieting  of  the  citizens  of  the  United 
States,  he  refuses  or  omits  to  see  justice  done  to  the  of- 
fender, and  reparation  made  to  the  party  injured,  so  far 
as  part  of  the  offender's  pay  shall  go  toward  such  repara- 
tion, ho  shall  be  dismissed  from  the  service,  or  otherwise 
punished,  as  a  court-martial  may  direct. 

Art.  55.  All  officers  and  soldiers  are  to  behave  them- 
selves orderly  in  quarters  and  on  the  march ;  and  who- 
ever commits  any  waste  or  spoil,  either  in  walks  or  trees, 
parks,  warrens,  fish  ponds,  houses,  gardens,  grain  fields, 
inclosures,  or  meadows,  or  maliciously  destroys  any  prop- 
erty whatsoever  belonging  to  inhabitants  of  the  United 
States,  (unless  by  order  of  a  general  officer  commanding  a 
separate  army  in  the  field,)  shall,  besides  such iienalties  as 
he  may  be  liable  to  by  law^,  be  punished  as  a  court-martial 
may  direct. 

Art.  56.  Any  officer  or  soldier  who  does  violence  to  any 
person  bringing  provisions  or  other  necessaries  to  the 
camp,  garrison,  or  quarters  of  the  forces  of  the  United 
States  in  foreign  parts,  shall  suffer  death,  or  such  other 
punishment  as  a  court-martial  may  direct. 


94  MANUAL  FOR   COURTS-MARTIAL. 

Art.  57.  Whosoever,  belonging  to  tlie  armies  of  the 
United  States  in  foreign  parts,  or  at  any  place  within  the 
United  States  or  their  Territories  during  rebellion  against 
the  supreme  authority  of  the  United  States,  forces  a  safe- 
guard, shall  suffer  death. 

Art.  58.  In  time  of  war,  insurrection,  or  rebellion,  lar- 
ceny, robbery,  burglary,  arson,  mayhem,  manslaughter, 
murder,  assault  and  battery  with  an  intent  to  kill,  Avound- 
ing,  by  shooting  or  stabbing,  with  an  intent  to  commit 
murder,  rape,  or  assault  and  battery  with  an  intent  to 
commit  rape,  shall  be  punishable  by  the  sentence  of  a 
general  court-martial,  when  conuuitted  by  persons  in  the 
military  service  of  the  United  States,  and  the  punishment 
in  any  such  case  shall  not  be  less  than  the  punishment  pro- 
vided, for  the  like  offense,  by  the  laws  of  the  State,  Terri- 
tory, or  district  in  which  such  oifense  may  have  been 
committed. 

Art.  59.  When  any  officer  or  soldier  is  accused  of  a 
capital  crime,  or  of  any  offense  against  the  person  or 
property  of  any  citizen  of  any  of  the  United  States, 
which  is  punishable  by  the  laws  of  the  land,  the  com- 
manding officer,  and  the  officers  of  the  regiment,  troop, 
battery,  company,  or  detachment,  to  which  the  person 
so  accused  belongs,  are  required,  except  in  time  of  war, 
upon  application  duly  made  by  or  in  behalf  of  the  party 
injured,  to  use  their  utmost  endeavors  to  deliver  him 
over  to  the  civil  magistrate,  and  to  aid  the  officers  of 
justice  in  apprehending  and  securing  him,  in  order  to 
bring  him  to  trial.  If,  upon  such  application,  any  officer 
refuses  or  willfully  neglects,  except  in  time  of  Avar,  to 
deliver  over  such  accused  person  to  the  civil  magistrates, 
or  to  aid  the  officers  of  justice  in  apprehending  him,  he 
shall  be  dismissed  from  the  service.' 

Art.  60.  Any  person  in  the  military  service  of  the 
United  States  who  makes  or  causes  to  be  made  any  claim 


1  Municipal  ordinances  and  by-laws  are  part  of  the  "laws  of  the 
land,'  within  the  meaninjr  of  the  phrase  as  used  in  the  59th  A.  "W. 
(Opin.  of  Att'y  Gen'l ;  see  circular  15,  A.  G.  O.,  1894. ) 


ARTICLES  OF  WAR.  95 

against  the  United  States,  or  any  officer  thereof,  knowing 
such  claim  to  be  false  or  fraudulent ;  or 

Who  presents  or  causes  to  be  presented  to  any  person 
in  the  civil  or  military  service  thereof,  for  approval  or 
payment,  any  claim  against  the  United  States  or  any 
officer  thereof,  knowing  such  claim  to  be  false  or  fraudu- 
lent; or 

Who  enters  into  any  agreement  or  conspiracy  to  de- 
fraud the  United  States  by  obtaining,  or  aiding  others  to 
obtain,  the  allowance  or  payment  of  any  false  or  fraudu- 
lent claim;  or 

Who,  for  the  purpose  of  obtaining,  or  aiding  others  to 
obtain,  the  ai)proval,  allowance,  or  payment  of  any  claim 
against  the  Ignited  States  or  against  any  officer  thereof, 
makes  or  uses,  or  procures  or  advises  the  making  or  use 
of,  any  writing,  or  other  paper,  knowing  the  same  to  con- 
tain any  false  or  fraudulent  statement ;  or 

Who,  for  the  purpose  of  obtaining,  or  aiding  others  to 
obtain,  the  approval,  allowance,  or  payment  of  any  claim 
against  the  United  States  or  any  officer  thereof,  makes, 
or  procures  or  advises  the  making  of,  any  oath  to  any 
fact  or  to  any  writing  or  other  paper,  knowing  such  oath 
to  be  false ;  or 

Who,  for  the  purpose  of  obtaining,  or  aiding  others  to 
obtain,  the  approval,  allowance,  or  payment  of  any  claim 
against  the  United  States  or  any  officer  thereof,  forges  or 
counterfeits,  or  procures  or  advises  the  forging  or  coun- 
terfeiting of,  any  signature  upon  any  writing  or  other 
paper,  or  uses,  or  procures  or  advises  the  use  of,  any  such 
signature,  knowing  the  same  to  be  forged  or  counter- 
feited; or 

Who,  having  charge,  possession,  custody  or  control  of 
any  money  or  other  property  of  the  United  States,  fur- 
nished or  intended  for  the  military  service  thereof,  know- 
ingly delivers,  or  causes  to  be  delivered,  to  any  person 
having  authority  to  receive  the  same,  any  amount  thereof 
less  than  that  for  which  he  receives  a  certificate  or  re- 
ceipt; or 


96  MANUAL  FOR   COURTS-MARTIAL. 

Who,  being  authorized  to  make  or  deliver  any  paper  cer- 
tifying the  receipt  of  any  property  of  the  United  States, 
furnished  or  intended  for  the  military  service  thereof, 
makes,  or  delivers  to  any  person,  such  writing,  without 
having  full  knowledge  of  the  truth  of  the  statements 
therein  contained,  and  with  intent  to  defraud  the  United 
States;  or     . 

Who  steals,  embezzles,  knowingly  and  willfully  misap- 
propriates, applies  to  his  own  use  or  benefit,  or  wrongfully 
or  knowingly  sells  or  disposes  of  any  ordnance,  arms, 
equipments,  ammunition,  clothing,  subsistence  stores, 
money,  or  other  property  of  the  United  States,  furnished 
or  intended  for  the  military  service  thereof;  or 

Who  knowingly  purchases,  or  receives  in  pledge  for  any 
obligation  or  indebtedness,  from  any  soldier,  officer,  or 
other  x^erson  who  is  a  part  of  or  employed  in  said  forces 
or  service,  any  ordnance,  arms,  equipments,  ammunition, 
clothing,  subsistence  stores,  or  other  property  of  the 
United  States,  such  soldier,  officer,  or  other  person  not 
having  lawful  right  to  sell  or  pledge  the  same, 

Shall,  on  conviction  thereof,  be  punished  by  fine  or 
imprisonment,  or  by  such  other  punishment  as  a  court- 
martial  may  adjudge.  And  if  any  person,  being  guilty  of 
any  of  the  offenses  aforesaid,  while  in  the  military  service 
of  the  United  States,  receives  his  discharge,  or  is  dismissed 
from  the  service,  he  shall  continue  to  be  liable  to  be 
arrested  and  held  for  trial  and  sentence  by  a  court-martial, 
in  the  same  manner  and  to  the  same  extent  as  if  he  had 
not  received  such  discharge  nor  been  dismissed. 

Art.  61.  Any  officer  who  is  convicted  of  conduct  unbe- 
coming an  officer  and  a  gentleman  shall  be  dismissed 
from  the  service. 

Art.  62.  All  crimes  not  capital,  and  all  disorders  and 
neglects,  which  officers  and  soldiers  may  be  guilty  of,  to 
the  prejudice  of  good  order  and  militarj^  discipline, 
though  not  mentioned  in  the  foregoing  Articles  of  War, 
are  to  be  taken  cognizance  of  by  a  general,  or  a  regimen- 
tal, garrison,  or  field  officers'  court-martial,  according  to 


ARTICLES  OF  WAE.  97 

the  nature  and  degree  of  the  oflEense,  and  panished  at  the 
discretion  of  such  court.' 

Art.  63.  All  retainers  to  the  camp,  and  all  persons 
serving  with  the  armies  of  the  United  States  in  the  Held, 
though  not  enlisted  soldiers,  are  to  be  subject  to  orders, 
according  to  the  rules  and  discipline  of  war. 

Art.  64.  The  officers  and  soldiers  of  any  trooi)s,  whether 
militia  or  others,  mustered  and  in  pay  of  the  United 
States,  shall,  at  all  times  and  in  all  places,  be  governed 
by  the  Articles  of  War,  and  shall  be  subject  to  be  tried 
by  courts-martial. 

Art.  65.  Officers  charged  with  crime  shall  be  arrested 
and  confined  in  their  barracks,  quarters,  or  tents,  and 
deprived  of  their  swords  by  the  commanding  officer. 
And  any  officer  who  leaves  his  confinement  before  he  is 
set  at  liberty  by  his  commanding  officer  shall  be  dismissed 
from  the  service. 

Art.  66.  Soldiers  charged  with  crimes  shall  be  confined 
until  tried  by  court-martial,  or  released  by  proper  au- 
thority. 

Art,  67.  No  provost  marshal,  or  officer  commanding  a 
guard,  shall  refuse  to  receive  or  keep  any  jirisoner  com- 
mitted to  his  charge  by  an  officer  belonging  to  the  forces 
of  the  United  States ;  provided  the  officer  committing 
shall,  at  the  same  time,  deliver  an  account  in  writing, 
signed  by  himself,  of  the  crime  charged  against  the  pris- 
oner. 

Art.  68.  Every  officer  to  whose  charge  a  prisoner  is 
committed  shall,  within  twenty-four  hours  after  such 
commitment,  or  as  soon  as  he  is  relieved  from  his  guard, 
report  in  Avriting,  to  the  commanding  officer,  the  name  of 
such  prisoner,  the  crime  charged  against  him,  and  the 
name  of  the  officer  committing  him;  and  if  he  fails  to 

>  "Sec.  3.  That  fraudulent  enlistment,  and  the  receipt  of  any  pay- 
or allowance  thereunder,  is  hereby  declared  a  military  oftense  and 
made  punishable  by  court-martial,  under  the  62d  Article  of  "War." 
(Act  of  July  27, 1892;  see  G .  O.  57,  A.  G,  O.,  1892.)  For  definition  of 
fraudulent  enlistment,  see  page  12,  note  4,  supra,  and  for  forms  for 
charges  see  pages  Hi  and  117,  infra. 

4644 5 


98  MANUAL   FOR   COURTS-MARTIAL. 

make  such  report,  lie  sliall  be  punished  as  a  court-martial 
may  direct. 

Art.  69.  Any  officer  who  presumes,  without  proper  au- 
thority, to  release  any  prisoner  committed  to  his  charge, 
or  suffers  any  prisoner  so  committed  to  escape,  shall  be 
punished  as  a  court-martial  may  direct. 

Art.  70.  No  officer  or  soldier  put  in  arrest  shall  bo  con- 
tinued in  confinement  more  than  eight  days,  or  until  such 
time  as  a  court-martial  can  be  assembled. 

Art.  71.  When  an  officer  is  put  in  arrest  for  the  pur- 
pose of  trial,  except  at  remote  military  posts  or  stations, 
the  officer  by  whose  order  he  is  arrested  shall  see  that  a 
copy  of  the  charges  on  which  he  is  to  bo  tried  is  served 
upon  him  within  eight  days  after  his  arrest,  and  that  he 
is  brought  to  trial  within  ten  days  thereafter,  unless  the 
necessities  of  the  service  prevent  such  trial;  and  then  he 
shall  be  brought  to  trial  within  thirty  days  after  the 
expiration  of  said  ten  days.  If  a  copy  of  the  charges  be 
not  served,  or  the  arrested  officer  be  not  brought  to  trial, 
as  herein  required,  the  arrest  shall  cease.  But  officers 
released  from  arrest,  under  the  provisions  of  this  article, 
may  be  tried,  whenever  the  exigencies  of  the  service  shall 
permit,  within  twelve  months  after  such  release  from 
arrest. 

Art.  72.  Any  general  officer  commanding  an  army,  a 
Territorial  division  or  a  department,  or  colonel  command- 
ing a  separate  department  may  appoint  general  courts- 
martial  whenever  necessary.  But  Avhen  any  such  com- 
mander is  the  accuser  or  prosecutor  of  an 5^  officer  under 
his  command  the  court  shall  be  appointed  by  the  Presi- 
dent; and  its  proceedings  and  sentence  shall  be  sent 
directl}^  to  the  Secretary  of  War,  by  whom  they  shall  be 
laid  before  the  President,  for  his  approval  or  orders  in  the 
case.  1 

Art.  73.  In  time  of  war  the  commander  of  a  division, 
or  of  a  separate  brigade  of  troops,  shall  be  competent  to 
appoint  a  general  court-martial.     But  when  such  com- 


lAct  of  July  5,  1884;  see  G,  O.  73,  A.  G.  O.,  1884. 


ARTICLES  OF  WAR.  99 

maDder  is  the  accuser  or  prosecuter  of  any  person  under 
his  command,  the  court  shall  be  appointed  by  the  next 
higher  commander. 

Art.  74.  Officers  who  may  appoint  a  court-martial  shall 
be  competent  to  appoint  a  judge-advocate  for  the  same. 

Art.  75.  General  courts-martial  may  consist  of  any  num- 
ber of  officers  from  five  to  thirteen,  inclusive ;  but  they 
shall  not  consist  of  less  than  thirteen  when  that  number 
can  be  convened  without  manifest  injury  to  the  service. 

Art.  76.  When  the  requisite  number  of  officers  to  form 
a  general  court-martial  is  not  present  in  any  j)ost  or  detach- 
ment, the  commanding  officer  shall,  incases  which  require 
the  cognizance  of  such  a  court,  report  to  the  commanding 
officer  of  the  department,  who  shall,  thereupon,  order  a 
court  to  be  assembled  at  the  nearest  post  or  department 
at  which  there  may  be  such  a  requisite  number  of  officers, 
and  shall  order  the  party  accused,  with  necessary  wit- 
nesses, to  be  transported  to  the  place  where  the  said  court 
shall  be  assembled. 

Art.  77.  Officers  of  the  Regular  Army  shall  not  be  com- 
petent to  sit  on  courts-martial  to  try  the  officers  or  sol- 
diers of  other  forces,  except  as  provided  in  Article  78. 

Art.  78.  Officers  of  the  Marine  Corps,  detached  for 
service  with  the  Army  by  order  of  the  President,  may  be 
associated  with  officers  of  the  Regular  Army  on  courts- 
martial  for  the  trial  of  offenders  belonging  to  the  R'^gular 
Army,  or  to  forces  of  the  Marine  Corps  so  detached;  and 
in  such  cases  the  orders  of  the  senior  officer  of  either 
corjis,  who  may  be  present  and  duly  authorized,  shall 
be  obeyed. 

Art.  79.  Officers  shall  be  tried  only  by  general  courts- 
martial  ;  and  no  officer  shall,  when  it  can  be  avoided,  be 
tried  by  officers  inferior  to  him  in  rank. 

Art.  80.  In  time  of  war  a  field  officer  may  be  detailed 
in  every  regiment,  to  try  soldiers  thereof  for  offenses  not 
capital;  and  no  soldier,  serving  with  his  regiment,  shall 
be  tried  by  a  regimental  [or]  garrison  court-martial  when 
a  field  officer  of  his  regiment  may  be  so  detailed. 


100  MANUAL   FOR   COURTS-MARTIAL. 

Art.  81.  Every  officer  commanding  a  regiment  or  corps 
sliall,  subject  to  the  provisions  of  Article  eighty,  bo  com- 
petent to  appoint,  for  his  own  regiment  or  corps,  courts- 
martial,  consisting  of  three  officers,  to  try  offenses  not 
capital. 

Art.  82.  Every  officer  commanding  a  garrison,  fort,  or 
other  i^lace,  where  the  troox)8  consist  of  different  corps, 
shall,  subject  to  thei)rovisions  of  Article  eighty,  be  com- 
petent to  appoint,  for  such  garrison  or  other  place,  courts- 
martial,  consisting  of  three  officers,  to  try  offenses  not 
capital. 

Art.  83.  Regimental  and  garrison  courts-martial,  and 
field  officers  detailed  to  try  offenders,  shall  not  have 
1)0 wer  to  try  capital  cases  or  commissioned  officers,  or  to 
inflict  a  fine  exceeding  one  month's  pay,  or  to  imprison 
or  put  to  hard  labor  any  noncommissioned  officer  or  sol- 
dier for  a  longer  time  than  one  month. 

Art.  84.  The  judge-advocate  shall  administer  to  each 
member  of  the  court,  before  they  proceed  upon  any  trial, 
the  following  oath,  which  shall  also  be  taken  by  all  mem- 
bers of  regimental  and  garrison  courts-martial:  ''You, 
A  B,  do  swear  that  you  will  well  and  truly  try  and  deter- 
mine, according  to  evidence,  the  matter  now  before  you, 
between  the  United  States  of  America  and  the  prisoner 
to  be  tried,  and  that  you  will  duly  administer  justice, 
without  partiality,  favor,  or  affection,  according  to  the 
X)ro  vis  ions  of  the  rules  and  articles  for  the  government 
of  the  armies  of  the  United  States,  and  if  any  doubt 
should  arise,  not  explained  hy  said  articles,  then  accord- 
ing to  your  conscience,  the  best  of  your  understanding, 
and  the  custom  of  war  in  like  cases;  and  you  do  further 
swear  that  you  will  not  divulge  the  sentence  of  the 
court  until  it  shall  be  published  by  the  proper  authority, 
except  to  the  judge-advocate;  neither  will  you  disclose 
or  discover  the  vote  or  opinion  of  any  particular  member 
of  the  court  martial,  unless  required  to  give  evidence 
thereof,  as  a  witness,  by  a  court  of  justice,  in  a  due 
course  of  law.     So  help  you  God." 


ARTICLES  OF  WAR.  101 

Art.  85.  When  the  oath  has  be^n  'aSministsred.  to  th^ 
members  of  a  court-martial,  the  pfesltteiit  of  the  court 
shall  admiuister  to  the  judge-advoc^te.^or  persDli  (>ific1a1r 
iug  as  such,  an  oath  in  the  fol'ltywihg'form:  ^' You,^A  jS5, 
do  swear  that  you  will  not  disclose  or  discover  the  vote 
or  opinion  of  any  particular  member  of  the  court-martial, 
unless  required  to  give  evidence  thereof,  as  a  witness,  by 
a  court  of  justice,  in  due  course  of  law;  nor  divulge  the 
sentence  of  the  court  to  any  but  the  proper  authority, 
until  it  shall  be  duly  disclosed  by  the  same.  So  help  you 
God." 

Art.  86.  The  court-martial  may  punish,  at  discretion, 
any  person  who  uses  auy  menacing  words,  signs,  or  gest- 
ures, in  its  presence,  or  who  disturbs  its  proceedings  by 
any  riot  or  disorder. 

Art.  87.  All  members  of  a  court-martial  are  to  behave 
with  decency  and  calmness. 

Art.  88,  Members  of  a  court-martial  may  be  challenged 
by  a  prisoner,  but  only  for  cause  stated  to  the  court.  The 
court  shall  determine  the  relevancy  and  validity  thereof, 
and  shall  not  receive  a  challenge  to  more  than  one  mem- 
ber at  a  time. 

Art.  89.  When  a  prisoner,  arraigned  before  a  general 
court-martial,  from  obstinacy  and  deliberate  design, 
stands  mute,  or  answers  foreign  to  the  purpose,  the  court 
may  proceed  to  trial  and  judgment,  as  if  the  prisoner  had 
pleaded  not  guilty. 

Art.  90.  The  judge-advocate,  or  some  person  deputed 
by  him,  or  by  the  general  or  officer  commanding  the 
Army,  detachment,  or  garrison,  shall  prosecute  in  the 
name  of  the  United  States,  but  when  the  prisoner  has 
made  his  plea,  he  shall  so  far  consider  himself  counsel  for 
the  prisoner  as  to  object  to  any  leading  question  to  any  of 
the  witnesses,  aud  to  any  question  to  the  prisoner,  the 
answer  to  which  might  tend  to  criminate  himself. 

Art.  91.  The  deposition  of  witnesses  residing  beyond 
the  limits  of  the  State,  Territory,  or  district  in  which  any 
military  court  may  be  ordered  to  sit,  if  taken  on  reasona- 
ble notice  to  the  opposite  party  and  duly  authenticated, 


102  MANUAL  FOR  COURTS-MARTIAL. 

iDay.beread  m^e;«^i(5eiice  before  such  court  in  cases  not 
capital. 1 

aAk'i^.  02.  AJl,  peisa^s  who  give  evidence  before  a  court- 
martial  shall. be  examined  on  oath,  or  affirmation,  in  the 
following  form :  '*  You  swear  (or  affirm)  that  the  evidence 
you  shall  give,  in  the  case  now  in  hearing,  shall  be  the 
truth,  the  whole  truth,  and  nothing  but  the  truth.  So 
help  you  God," 

Art.  93.  A  court-martial  shall,  for  reasonable  cause, 
grant  a  continuance  to  either  party,  for  such  time,  and  as 
often,  as  may  appear  to  be  just:  Provided,  That  if  the 
prisoner  be  in  close  confinement,  the  trial  shall  not  be 
delayed  for  a  period  longer  than  sixty  days. 

Art.  94.  Proceedings  of  trials  shall  be  carried  on  only 
between  the  hours  of  eight  in  the  morning  and  three  in 
the  afternoon,  excepting  in  cases  which,  in  the  opinion 
of  the  officer  appointing  the  court,  require  immediate 
example. 

Art.  95.  Members  of  a  court-martial,  in  giving  their 
votes,  shall  begin  with  the  youngest  in  commission. 

Art.  96.  No  person  shall  be  sentenced  to  suffer  death, 
except  by  the  concurrence  of  two-thirds  of  the  members 
of  a  general  court-martial,  and  in  the  cases  herein  ex- 
pressly mentioned. 

Art.  97.  No  person  in  the  military  service  shall,  under 
the  sentence  of  a  court-martial,  be  punished  by  confine- 
ment in  a  penitentary,  unless  the  offense  of  which  he 
may  be  convicted  would,  by  some  statute  of  the  United 
States,  or  by  some  statute  of  the  State,  Territory,  or  Dis- 
trict in  which  such  offense  may  be  committed,  or  by  the 
common  law,  as  the  same  exists  in  such  State,  Territory, 
or  District,,  subject  such  convict  to  such  punishment. 

Art.  98.  No  person  in  the  military  service  shall  be  pun- 
ished by  Hogging,  or  by  branding,  marking,  or  tattooing 
on  the  body. 

'  "  Sec.  4.  That  judge-advocates  of  departments  and  of  courts-mar 
tial,  aud  the  trial  officers  of  summary  courts,  are  hereby  authorized  to 
administer  oaths  for  the  purposes  of  tlie  administration  of  military 
justice,  and  for  other  purposes  of  military  administration."  (Act  of 
July  27, 1892;  see  G.  0. 57,  A.  G.  O.,  1892.) 


ARTICLES  OF  WAR.  103 

Art.  99.  No  officer  shall  be  discharged  or  dismissed 
from  the  service,  except  by  order  of  the  President,  or  by 
sentence  of  a  general  court-martial ;  and  in  time  of  peace 
no  officer  shall  be  dismissed,  except  in  pursuance  of  the 
sentence  of  a  court-martial,  or  in  mitigation  thereof. 

Art.  100.  When  an  officer  is  dismissed  from  the  service 
for  covrardice  or  fraud,  the  sentence  shall  further  direct 
that  the  crime,  punishment,  name,  and  place  of  abode  of 
the  delinquent  shall  be  published  in  the  newspapers  in 
and  about  the  camp,  and  in  the  State  from  which  the 
offender  came,  or  where  he  usually  resides;  and  after  such 
publication  it  shall  be  scandalous  for  an  officer  to  asso- 
ciate with  him. 

Art.  101.  When  a  court-martial  suspends  an  officer 
from  command,  it  may  also  suspend  his  pay  and  emolu- 
ments for  the  same  time,  according  to  the  nature  of  his 
offense. 

Art.  102.  No  person  shall  be  tried  a  second  time  for  the 
same  offense. 

Art.  103.  No  person  shall  be  liable  to  be  tried  and  pun- 
ished by  a  general  court-martial  for  any  offense  which 
appears  to  have  been  committed  more  than  two  years 
before  the  issuing  of  the  order  for  such  trial,  unless,  by 
reason  of  having  absented  himself,  or  of  some  other  mani- 
fest impediment,  he  shall  not  have  been  amenable  to 
justice  within  that  period. 

No  person  shall  be  tried  or  punished  by  a  court-martial 
for  desertion  in  time  of  peace  and  not  in  the  face  of  an 
enemy,  committed  more  than  two  years  before  the  arraign- 
ment of  such  person  for  such  offense,  unless  he  shall  mean- 
while have  absented  himself  from  the  United  States,  in 
which  case  the  time  of  his  absence  shall  be  excluded  in 
computing  the  period  of  the  limitation :  Provided,  That 
said  limitation  shall  not  begin  until  the  end  of  the  term 
for  which  said  person  was  mustered  into  the  service.  ^ 

Art.  104.  No  sentence  of  a  court-martial  shall  be  car- 
ried into  execution  until  the  same  shall  have  been  ap- 


»103d  A.  W.,  as  amended  by  act  of  April  11,  1890;  see  G.  O.  45, 
A.  G.  O.,  1890. 


104  MANUAL  FOR  COURTS-MARTIAL. 

proved  by  the  officer  ordering  the  court,  or  by  the  officer 
cominaading  for  the  time  being.' 

Art.  105.  No  sentence  of  a  court-martial,  inflicting  the 
punishment  of  death,  shall  be  carried  into  execution  until 
it  shall  have  been  confirmed  by  the  President;  except  in 
the  cases  of  persons  convicted,  in  time  of  war,  as  spies, 
mutineers,  deserters,  or  murderers,  and  in  the  cases  of 
guerilla  marauders,  convicted,  in  time  of  war,  of  robbery, 
burglary,  arson,  rape,  assault  with  intent  to  commit  rape, 
or  of  violation  of  the  laws  and  customs  of  war;  and  in 
such  excepted  cases  the  sentence  of  death  may  be  carried 
into  execution  upon  confirmation  by  the  commanding  gen- 
eral in  the  field,  or  the  commander  of  the  department,  as 
the  case  may  be. 

Art.  106.  In  time  of  i^eace  no  sentence  of  a  court-mar- 
tial, directing  the  dismissal  of  an  officer,  shall  be  carried 
into  execution,  until  it  shall  have  been  confirmed  by  the 
President. 

Art.  107.  No  sentence  of  a  court-martial  appointed  by 
the  commander  of  a  division  or  of  a  separate  brigade  of 
troops,  directing  the  dismissal  of  an  officer,  shall  be  car- 
ried into  execution  until  it  shall  have  been  confirmed  by 
the  general  commanding  the  army  in  the  field  to  which 
the  division  or  brigade  belongs. 

Art.  108.  No  sentence  of  a  court-martial,  either  in  time 
of  peace  or  in  time  of  war,  respecting  a  general  officer, 
shall  be  carried  into  execution,  until  it  shall  have  been 
confirmed  by  the  President. 

Art.  109.  All  sentences  of  a  court-martial  may  be  con- 
firmed and  carried  into  execution  by  the  officer  ordering 
the  court,  or  by  the  officer  commanding  for  the  time  being, 
where  confirmation  by  the  President,  or  by  the  command- 
ing general  in  the  field,  or  commander  of  the  department, 
is  not  required  by  these  articles. 

Art.  110,  No  sentence  adjudged  by  a  field  officer,  de- 
tailed to  try  soldiers  of  his  regiment,  shall  be  carried  into 
execution  until  the  same  shall  have  been  approved  by  the 


1104th  A.  W.,  as  amended  by  act  of  July  27, 1892;  see  G.  O.  57, 
A.  G.  O.,  1892. 


ARTICLES  OF  WAR.  105 

brigade  commander,  or,  in  case  there  be  no  brigade  com- 
mander, by  the  commanding  officer  of  the  post  or  camp.» 

Art.  111.  Any  officer  who  has  authority  to  carry  into 
execution  the  sentence  of  death,  or  of  dismissal  of  an 
officer,  may  suspend  the  same  until  the  pleasure  of  the 
President  shall  be  known;  and,  in  such  case,  he  shall  im- 
mediately transmit  to  the  President  a  copy  of  the  order 
of  suspension,  together  with  a  copy  of  the  proceedings  of 
the  court. 

Art.  112.  Every  officer  who  is  authorized  to  order  a 
general  court-martial  shall  have  power  to  pardon  or  miti- 
gate any  punishment  adjudged  by  it,  except  the  punish- 
ment of  death  or  of  dismissal  of  an  officer.  Every  officer 
commanding  a  regiment  or  garrison  in  which  a  regimental 
or  garrison  court-martial  may  be  held,  shall  have  i)ower 
to  pardon  or  mitigate  any  punishment  which  such  court 
may  adjudge. ^ 

Art.  113.  Every  judge-advocate,  or  person  acting  as 
such,  at  any  general  court-martial,  shall,  with  as  much 
expedition  as  the  opportunity  of  time  and  distance  of 
place  may  admit,  forward  the  original  proceedings  and 
sentence  of  such  court  to  the  Judge-Advocate-General  of 
the  Army,  in  whose  office  they  shall  be  carefully  preserved. 

Art.  114.  Every  party  tried  by  a  general  court-martial 
shall,  upon  demand  thereof,  made  by  himself  or  by  any 
person  in  his  behalf,  be  entitled  to  a  copy  of  the  proceed- 
ings and  sentence  of  such  court. 

Art.  115.  A  court  of  inquiry,  to  examine  into  the  nature 
of  any  transaction  of,  or  accusation  or  imputation 
against,  any  officer  or  soldier,  may  be  ordered  by  the 
President  or  by  any  commanding  officer;  but,  as  courts 
of  inquiry  may  be  perverted  to  dishonorable  purposes, 
and  may  be  employed,  in  the  hands  of  weak  and  envious 
commandants,  as  engines  for  the  destruction  of  military 
merit,  they  shall  never  be  ordered  by  any  commanding 
officer,  except  upon  a  demand  by  the  officer  or  soldier 
whose  conduct  is  to  be  inquired  of. 


» 110th  A.  W.,  as  amended  by  act  of  July  27,  1892;  see  G.  O.  57, 
A.  G.  O.,  1892. 
»  See  Par.  916,  A.  R. 

4644 5* 


106  MANUAL  FOR   COUETS-MARTIAL. 

Art.  116.  A  court  of  inquiry  shall  consist  of  one  or  more 
officers,  not  exceeding  three,  and  a  recorder,  to  reduce 
the  proceedings  and  evidence  to  writing. 

Art.  117.  The  recorder  of  a  court  of  inquiry  shall  ad- 
minister to  the  members  the  following  oath:  "You  shall 
well  and  truly  examine  and  inquire,  according  to  the 
evidence,  into  the  matter  now  before  you,  without  par- 
tiality, favor,  affection,  prejudice,  or  hope  of  reward.  So 
lielji  you  God."  After  which  the  president  of  the  court 
shall  administer  to  the  recorder  the  following  oath :  "You, 
A  B,  do  swear  that  you  will,  according  to  your  best  abil- 
ities, accurately  and  impartially  record  the  proceedings 
of  the  court  and  the  evidence  to  be  given  in  the  case  in 
hearing.     So  help  you  God." 

Art.  118.  A  court  of  inquiry,  and  the  recorder  thereof, 
shall  have  the  same  power  to  summon  and  examine  wit- 
nesses as  is  given  to  courts-martial  and  the  judge-advo- 
cates thereof.  Such  witnesses  shall  take  the  same  oath 
which  is  taken  by  Avitnesses  before  conrts-martials,'  and 
the  party  accused  shall  be  permitted  to  examine  and 
cross-examine  them,  so  as  fully  to  investigate  the  circum- 
stances in  question. 

Art.  119.  A  court  of  inquiry  shall  not  give  an  opinion 
on  the  merits  of  the  case  inquired  of  unless  specially 
ordered  to  do  so. 

Art  120.  The  proceedings  of  a  court  of  inquiry  must  be 
authenticated  by  the  signatures  of  the  recorder  and  the 
president  thereof,  and  delivered  to  the  commanding 
officer. 

Art.  121.  The  proceedings  of  a  court  of  inquiry'  niay  be 
admitted  as  evidence  by  a  court-martial,  in  cases  not 
capital,  nor  extending  to  the  dismissal  of  an  officer:  Pro- 
vided, That  the  circumstances  are  such  that  oral  testi- 
mony can  not  be  obtained. 

Art.  122.  If,  upon  marches,  guards,  or  in  quarters,  dif- 
ferent corps  of  the  Army  happen  to  join  or  do  duty  to- 
gether, the  officer  highest  in  rank  of  the  line  of  the  Army, 
Marine  Corps,  or  militia,  by  comimission,  there  on  duty  or 


*  Sic.  in  Revised  Statutes. 


ARTICLES  OF  WAR.  107 

in  quarters,  shall  command  the  Avhole,  and  give  orders 
for  what  is  needful  to  the  service,  unless  otherwise  spe- 
cially directed  by  the  President,  according  to  the  nature 
of  the  case. 

Art.  123.  In  all  matters  relating  to  the  rank,  duties, 
and  rights  of  officers,  the  same  rules  and  regulations  shall 
apply  to  officers  of  the  Regukir  Army  and  to  volunteers 
commissioned  in,  or  mustered  into  said  service,  under  the 
laws  of  the  United  States,  for  a  limited  period. 

Art.  124.  Officers  of  the  militia  of  the  several  States, 
when  called  into  the  service  of  the  United  States,  shall 
on  all  detachments,  courts-martial,  and  other  duty  wherein 
they  may  he  employed  in  conjunction  with  the  regular  or 
volunteer  forces  of  the  United  States,  take  rank  next 
after  all  officers  of  the  like  grade  in  said  regular  or  volun- 
teer forces,  notwithstanding  the  commissious  of  such 
militia  officers  may  he  older  than  the  commissions  of  the 
said  officers  of  the  regular  or  volunteer  forces  of  the 
United  States. 

Art.  125.  In  case  of  the  death  of  any  officer,  the  major 
of  his  regiment,  or  the  officer  doing  the  major's  duty,  or 
the  second  officer  in  command  at  any  post  or  garrison,  as 
the  case  may  be,  shall  immediately  secure  all  his  eifects 
then  in  camp  or  quarters,  and  shall  make,  and  transmit  to 
the  office  of  the  Department  of  AVar,  an  inventory  thereof. 

Art.  126.  In  case  of  the  death  of  any  soldier,  the  com- 
manding officer  of  his  troop,  battery,  or  company  shall 
immediately  secure  all  his  effects  then  in  camp  or  quar- 
ters, and  shall,  in  the  presence  of  two  other  officers,  make 
an  inventory  thereof,  which  he  shall  transmit  to  the  office 
of  the  Department  of  War. 

Art.  127.  Officers  charged  with  the  care  of  the  effects 
of  deceased  officers  or  soldiers  shall  account  for  and  de- 
liver the  same,  or  the  proceeds  thereof,  to  the  legal  repre- 
sentatives of  such  deceased  officers  or  soldiers.  And  no 
officer  so  charged  shall  be  permitted  to  quit  the  regiment 
or  post  until  he  has  deposited  in  the  hands  of  the  com- 
manding officer  all  the  effects  of  such  deceased  officers  or 
soldiers  not  so  accounted  for  and  delivered. 


108  MANUAL  FOR   COURTS-MARTIAL. 

Art.  128.  The  foregoing  articles  shall  be  read  and  pub- 
lished, once  in  every  six  mouths,  to  every  garrison,  regi- 
ment, troop,  or  company  in  the  service  of  the  United 
States,  and  shall  be  duly  observed  and  obeyed  by  all 
officers  and  soldiers  in  said  service. 

OTHER  STATUTORY  PROVISIONS  DEFINING 
COURT-MARTIAL  OFFENSES. 

Sec.  1343,  R.  S.  "All  persons  who,  in  time  of  war,  or  of 
rebellion  against  the  supreme  authority  of  the  United 
States,  shall  be  found  lurking  or  acting  as  spies,  in  or 
about  any  of  the  fortifications,  posts,  quarters,  or  en- 
campments of  any  of  the  armies  of  the  United  States,  or 
elsewhere,  shall  be  triable  by  a  general  court-martial,  or 
by  a  military  commission,  and  shall,  on  conviction 
thereof,  suffer  death." 

Sec.  5306,  R.  S.  "Every  officer  of  the  United  States, 
civil,  military,  or  naval,  and  every  sutler,  soldier,  marine, 
or  other  person,  who  takes,  or  causes  to  be  taken  into 
a  State  declared  to  be  in  insurrection,  or  to  any  other 
point  to  be  thence  taken  into  such  State,  or  who  trans- 
ports or  sells,  or  otherwise  disposes  of  therein,  any  goods, 
wares,  or  merchandise  whatsoever,  except  in  pursuance 
of  license  and  authority  of  the  President,  as  provided  in 
this  title  [see  sec.  5304],  or  who  makes  any  false  state- 
ment or  representation  upon  which  license  and  authority 
is  granted  for  such  transportation,  sale,  or  other  disposi- 
tion, or  who,  under  any  license  or  authority  obtained, 
willfully  and  knowingly  transports,  sells,  or  otherwise 
disposes  of  any  other  goods,  wares,  or  merchandise  than 
such  as  are  in  good  faith  so  lioensed  and  authorized,  or 
who  willfully  and  knowingly  transports,  sells,  or  dis- 
poses of  the  same,  or  any  portion  thereof,  in  violation  of 
the  terms  of  such  license  or  authority,  or  of  any  rule  or 
regulation  jirescribed  by  the  Secretary  of  the  Treasury 
concerning  the  same,  or  who  is  guilty  of  any  act  of  embez- 
zlement, of  willful  misappropriation  of  public  or  private 
money  or  property,  of  keeping  false  accounts,  or  of  will- 
fully making  any  false  returns,  shall  be  deemed  guilty  of 
a  misdemeanor,  and  shall  bo  fined  not   more  than  five 


ACT  ESTABLISHINa  THE  SUMMARY  COURT.     109 

thousand  dollars,  and  imprisoned  in  the  penitentiary  not 
more  than  three  years.  Violations  of  this  section  shall 
be  cognizable  before  any  court,  civil  or  military,  compe- 
tent to  try  the  same.'' 

Sec.  5313,  R.  S.  ''All  persous  in  the  military  or  naval 
service  of  the  United  States  are  prohibited  from  buying 
or  selling,  trading,  or  in  any  way  dealing  in  captured  or 
abandoned  property,  whereby  they  shall  receive  or  expect 
any  profit,  benefit,  or  advantage  to  themselves,  or  any 
other  person,  directly  or  indirectly  connected  with  them; 
and  it  shall  be  the  duty  of  such  person  whenever  such 
property  comes  into  his  possession  or  custody,  or  within 
his  control,  to  give  notice  thereof  to  some  agent,  appointed 
by  virtue  of  this  title  [see  sec.  5305],  and  to  turn  the 
same  over  to  such  agent  without  delay.  Any  officer  of 
the  United  States,  civil,  military,  or  naval,  or  any  sutler, 
soldier,  or  marine,  or  other  person  who  shall  violate  any 
provision  of  this  section  shall  be  deemed  guilty  of  a  mis- 
demeanor, and  shall  be  fined  not  more  than  five  thousand 
dollars,  and  imprisoned  in  the  penitentiary  not  more  than 
three  years.  Violations  of  this  section  shall  be  cogniza- 
ble before  any  court,  civil  or  military,  competent  to  try 
the  same." 

ACT  ESTABjLISHING  THE  SUMMARY  COURT. 

*'  Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled, 
That  hereafter  in  time  of  peace  all  enlisted  men  charged 
with  ofteuses  now  cognizable  by  a  garrison  or  regimental 
court-martial  shall,  within  twenty-four  hours  from  the 
time  of  their  arrest,  be  brought  before  a  summary  court, 
which  shall  consist  of  the  line  officers '  second  in  rank  at 
the  post  or  station  or  of  the  command  of  the  alleged 
offender,  and  at  stations  where  only  officers  of  the  staff 
are  on  duty  the  officers  second  in  rank  shall  constitute 
such  court,  who  shall  have  power  to  administer  oaths  and 
to  hear  and  determine  the  case,  and  when  satisfied  of  the 
guilt  of  the  accused  party  adjudge  the  punishment  to  be 

*  Sic  in  the  roll. 


110  MANUAL  FOR   COURTS-MARTIAL. 

inflicted.  There  shall  he  a  summary  court  record  book 
or  docket  kept  at  each  military  post,  and  in  the  field  at 
the  headquarters  of  the  command,  in  which  shall  he 
entered  a  record  of  all  cases  heard  and  determined  and 
the  action  had  thereon,  and  no  sentence  adjudged  hy 
said  summar}"^  court  shall  he  executed  until  it  shall  have 
heen  approved  hy  the  post  or  other  commander : '  Provided, 
That  when  hut  one  commissioned  officer  is  present  with  a 
command  he  shall  hear  and  finally  determine  such  cases 
as  require  summary  action :  Provided  further,  That  the 
President  he,  and  he  hereby  is,  authorized  to  prescribe  spe- 
cific penalties  for  such  nunor  off"enses  as  are  now  brought 
before  garrison  and  regimental  courts-martial :  Provided, 
further.  That  any  enlisted  man  charged  with  an  offense 
and  brought  before  such  summary  court  may,  if  he  so 
desires,  object  to  a  hearing  and  determination  of  his  case 
by  such  court  and  request  a  trial  by  court-martial,  which 
request  shall  be  granted  as  of  right,  and  when  the  court 
is  the  accuser  the  case  shall  be  heard  and  determined  by 
the  post  commander,  or  by  regimental  or  garrison  court- 
martial:  And  provided  farther,  That  post  and  other  com- 
manders shall,  on  the  last  day  of  each  month,  make  a 
report  to  the  department  headquarters  of  the  number  of 
cases  determined  by  summary  court  during  the  month, 
setting  forth  the  offenses  committed  and  the  penalties 
awarded,  which  reports  shall  be  filed  in  the  office  of  the 
judge-advocate  of  the  department.  *  *  * 
''Approved  October  1,  1890." 

•  "  Sec.  5.  That  tlie  commanding  officers  authorized  to  approve  tlie 
sentences  of  summary  courts  shall  have  the  power  to  remit  or  miti 
gate  the  same.  "     (Act  of  July  27,  1892;  see  G.  O.  57,  A.  G.  O,,  1892.) 


GENERAL  FORMS. 

FORMS  FOR  CHARGES. 

Charge  and  specification  preferred  against  Private 
A B ,  Co. , U.  S.  Infantry. 

Form  1.— (a)  Charge:  "Selling  clothing,' in  violation 
of  the  17th  Article  of  War." 

Specification:  ''In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  did  sell  the  following  articles  of  his 

uniform  clothing,  issued  to  him,  viz:  One  (1)  forage  cap, 

value  $ ;  one  (1)  overcoat,  made,  value  $ ;  and  one 

(1)  hlanket,  woolen,  value  $ ;  total  value  of  articles 

sold,  $ . 

"This  at ,  on  the of ,  18—." 

C D , 

Captain, Infantry, 

Officer  Preferring  Charge. 
Witnesses : 

Ist  Sergeant  E F ,  Co. , Infantry. 

Private  G H ,  Troop , Cavalry. 

Mr.  1 K ,  citizen. 

or, 

(&)  ''Losing  accoutrements,  in  violation  of  the  17th 
Article  of  War."  2 

Specification :  "  In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  did,  through  neglect,  lose  the  follow- 
ing articles  of  his  accoutrements,  issned  to  him,  viz :  One 

(1) ,  value,  $ ;  and  one  (1) ,  value  $ ;  total 

value  of  articles  lost,  $ . 

"This  at,  etc." 

'  See  page  17,  Sec.  Ill,  supra. 

*  If  a  soldier  is  known  to  have  unlawfully  disposed  of  his  clothing 
or  accoatrements  in  a  way  not  mentioned  in  the  ITth  Article,  the 
charge  should  be  laid  under  the  62d  Article. 

Ill 


112  MANUAL  FOR  COURTS-MARTIAL. 

Form  2. — (a)  Charge:  '^Disobedience  of  orders,'  in 
violatioa  of  tlie  21st  Article  of  War." 

Specification:  In  that  Private  A B ,  Co.  , 

U.  S.  Infantry,  liaving  received  a  lawful  command 

from  his  superior  officer,  2d  Lieut.  C D ,   

Infantry,  to  {insei't  order),  did  vrillfully  disobey  the  same. 

''This  at ,  on  the of ,18—." 

or, 

(h)  "Striking  his  superior  officer,  in  violation  of  the 
21stArticleof  War." 

Specification:  "In  that  Private  A B  ,  Co. , 

U.  S.  Infantry,  did  strike  his  superior  officer,  2d 

Lieut.  C P , Infantry,  the  said  Lieutenant 

being  in  the  execution  of  his  office,  with . 

"This  at ,  on  the of ,  18—." 

Form  3. — Charge  :  "Absence  without  leave,  in  viola- 
tion of  the  32d  Article  of  War." 

Specification:  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  did  absent  himself  from  his  company, 

without  leave  from  his  commanding  officer,  from ,  on 

the of 18 — ,  until ,  on  the of 18—. 

"This  at ." 

Form  4. — (a)  Charge  :  "Absence  from  parade,  in  viola- 
tion of  the  33d  Article  of  War." 

Specification:  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  not  being  prevented  by  sickness  or 

other  necessity,  did  fail  to  repair,  at  the  fixed  time,  to 
the  place  of  parade  appointed  by  his  commanding  officer. 

"This  at ,  on  the of ,  18—." 

or, 

(&)  "Absence  from  11  p.  m.  inspection,  in  violation  of 
the  33d  Article  of  War." 

'  A  noncompliance  by  a  soldier  with  an  order  emanating  from  a 
noncommissioned  officer  is  not  an  offense  under  this  article,  but  one 
to  be  charged,  in  general,  under  the  C2d,  A  simple  neglect  to  com- 
ply with  a  standing  order  is  an  off"ense  under  the  62d  Article,  and 
not  under  the  21st,  which  implies  a  willful  defiance  of  authority. 


FORMS  FOB  CHARGES.  113 

Specification:  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  not  being  prevented  by  sickness  or 

other  necessity,  did  fail  to  repair,  at  the  fixed  time,  to  the 
place  appointed  by  his  commanding  officer  for  11  o'clock 
p.  m.  inspection  of  his  company. 

''This  at ,  on  the of ,  18—." 

Form  5. — (a).  Charge:  "Drunkenness  on  duty,  in  vio- 
lation of  the  38th  Article  of  War." 

Specification:  In  that  Private  A B ,  Co.  , 

U.  S.  Infantry,  while  on  duty  on  stable  guard,  was 

found  drunk. 

"  This  at ,  about ,  on  the of ,  18—." 

or, 

(6)  "  In  that  Private  A B ,  Co. , U.  S. 

Infantry,  while  on  duty  at  drill,  was  found  drunk. 

"This  at,  etc." 

Form  6. — {a)  Charge:  "Sleeping  on  post,  in  violation 
of  the  39th  Article  of  War." 

Specification:  "In  that  Private  A B ,  Co. , 

U,  S.  Infantry,  while  on  duty  as  a  sentinel,  waa 

found  sleeping  on  his  post. 

"  This  at ,  about ,  on  the of ,  18—." 

or, 
(&)  "  Leaving  post,  in  violation  of  the  39th  Article  of 
War." 

Specification:  "In  that  Private  A B ,  Co.- , 

U.  S.  Infantry,  being  on  duty  as  a  sentinel,  did 

leave  his  post  before  he  was  regularly  relieved. 

"This  at,  etc." 

Form  7. — Charge :  "  Quitting  guard,  in  violation  of  the 
40th  Article  of  War." 

Specification:  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  being  on  guard,  did,  without  urgent 

necessity,  quit  his  guard  without  leave  from  his  superior 
officer. 

"This  at ,  about ,  on  the of 18—." 


114  MANUAL  FOR  COURTS-MARTIAL. 

Form  8. — (a)  Charge:  ''Desertion,  in  violation  of  the 
47th  Article  of  War." 

Specification:  *'In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  a  soldier  in  the  service  of  the  United 

States/  did  desert  the  same  at ,  on  or  about  the 

of ,  18 — ,  and  did  remain  absent  in  desertion  until 

he  was  apprehended  (or  until  he  surrendered  himself), 
at ,  on  or  about  the of ,  18 — ." 

(&)  If  a  soldier  deserts  and  enlists  in  another  troop,  he 
should  be  charged  with  desertion  under  the  47tli  Article, 
and  also  with  ^'fraudulent  enlistment,  to  the  prejudice  of 
good  order  aud  military  discipline,"  under  the  62d.2  The 
specification  to  the  latter  charge  should  read  as  follows : 

''In  that  Private  A— —  B ,  Co. , Infantry,  a 

soldier  in  the  service  of  the  United  States,  did,  without 
a  discharge  from  said  regiment  of  infantry,  fraudulently 

enlist  in  Troop , U.  S.  Cavalry,  at ,  on  the 

of ,  18—,  under  the  name  of ." 

Form  9. — Charge:  "Larceny,  in  violation  of  the  60th 
Article  of  War." 

Specification:  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  did  feloniously  take,  steal,  and  carry 

away  ,   of  the  value  of  $ ,  the  property  of  the 

United  States  furnished  and  intended  for  the  military 
service  thereof. 

"This  at ,  on  the of ,  18—." 

Violations  of  the  62d  Article  of  War. 

Form  10. — Charge:  "Neglect  of  duty,  to  the  prejudice 
of  good  order  aud  military  discipline." 

^This  form  is  applicable  either  in  case  a  soldier  has  "received 
pay"  or  has  been  "duly  enlisted."  In  either  case  the  "statement 
of  service  '  will  enable  the  courr  to  determine  as  to  the  statute  of 
limitation  and  proper  punishment.  (See  page  32,  par.  10,  and  page 
53,  supra. 

2See50th  A.  W.  and  G.  O.  57,  A.  G.  O.,  1892.  For  definition  of 
"  fraudulent  enlistment,"  see  page  12,  note  4,  supra. 


FORMS  FOR   CHARGES.  115 

Specification  :   "In  that  Private  A B ,  Co. , 

U.  S,  Infantry,  being  on  duty  as  ,  and  it  being 

his  duty  as  such  to  ,  did  fail  and  neglect  to  perform 

said  duty. 

''This  at ,  on  the of ,  18—." 

Form  11. — Charge :  *'  Drunkenness  and  disorderly  con- 
duct, to  the  prejudice  of  good  order  and  military  disci- 
pline." 

Specification  :  "  In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  was  drunk  and  disorderly  in . 

"This  at ,  about ,  on  the of ,  18—." 

Form  12. — Charge :  "Suffering  a  prisoner  to  escape,  to 
the  prejudice  of  good  order  and  military  discipline." 

(a)  Specification  :  In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  while  on  duty  as  a  sentinel,  did, 

through  neglect,  suffer  Private  C D ,  Co.  , 

U.   S.  Infantry,  a  prisoner  under  his  charge,  to 

escape. 

"  This  at ,  on  the of ,  18—." 

or, 

(b)  Specification :  "In  that  Private  A B ,  Co. , 

U.   S.  Infantry,  while  on  duty  as  a  sentinel,  did 

willfully  suffer  Private  C D ,  Co. , U.  Sr 

Infantry,  a  prisoner  under  his  charge,  to  escape. 

"This  at ,  on  the of ,  18—." 

Form  13.— Charge :  "  Conduct  to  the  prejudice  of  good 
order  and  military  discipline." 

^Specification  :  "In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  having  received  a  lawful  order  from 

Ist  Sergt.  C D ,  Co.  ,  11.  S.  Infantry, 

the  said  sergeant  being  in  the  execution  of  his  otfice,  to 
{insert  order),  did  willfully  disobey  the  same. 
"  This  at ,  on  the of  -^,  18—." 

Form  14. — Charge :  "Assault  with  intent  to  kill,  to  the 
prejudice  of  good  order  and  military  (liscijiliue." 


116  MANUAL  FOR  COURTS-MARTIAL. 

Specification :  ^'  In  that  Private  A B ,  Co. , 

U.   S.   Infantr}',   did  feloniously  assault  Sergeant 

,  Co. , U.  S.  Infantry,  by  stabbing  liim  with 

a  knife,  with  intent  to  kill. 

"  This  at ,  on  the of ,  18—." 

Form  15.— Charge :  ^ '  Burglary,  to  the  prej  udice  of  good 
order  and  military  discipline." 

Specification  :  "  In  that  Private  A B ,  Co.  , 

Infantry,  did,  in  the  night-time,  break  into  and  enter 

the  quarters  of  1st  Lieut.  C D , U.  S.  Cav- 
alry, with  intent  to  commit  a  felony,  to  wit : — 

*'This  at ,  about o'clock m.,  on  the of 

,18-." 

Form  16.— Charge :  ''  Larceny,  to  the  prejudice  of  good 
order  and  military  discipline." 

Specification :  "  In  that  Private  A B ,  Co. , 

U.  S.  Infantry,  did  feloniously  take,  steal,  and  carry 

away ,  of  the  value  of dollars  ($ ),  the  prop- 
erty of  Corporal ,  Co. , U.  S.  Infantry. 

^*  This  at ,  on  the of ,  18—." 

Form  17.— Charge :  ''  Perjury,i  to  the  prejudice  of  good 
order  and  military  discipline." 

Specification:  ''In  that  Private  A B ,  Co. , 

— '—  U.  S.  Infantry,  having  been  duly  sworn,  at  his  own 

request,  as  a  witness  in  his  own  defense  before  a t- 

court-martial,  convened  at ,  by order  No. , 

dated ,  18 — ,  for  his  trial,  did  willfully,  falsely,  and 

corruptly  testify  as  follows : 

1  Wharton  says  (Criminal  Law,  sec.  1259),  "  Perjury  before  courts- 
martial  is  by  statute  made  indictable  in  most  jurisdictions ;  but  CA-en 
when  a  statute  does  not  apply,  the  weight  of  authority  is  tliat  it  is 
perjufy  at  conuuon  law."  It  is  a  statutory  crime,  under  section  5392 
Revised  Statutes  of  the  United  States.  So  that  false  swearing  before 
a  court-martial,  if  it  possesses  the  other  elements  of  perjurj^  is  per- 
jury, and  can  be  tried  as  such  by  court-martial  under  the  C2d  Article 
of  War.  The  rules  of  evidence  in  regard  to  perjury  will  tlien  apply. 
When  any  of  the  elements  of  perjury  are  lacking  the  olfense  will 
properly  be  charged  as  "false  swearing;"  e.g. .when  the  matter  is 
not  material  to  the  issue. 


FORMS  FOR  CHARGES.  117 

"  Question  by  judge-advocate : ? 

"  Answer : . 

"Which  testimony  was  false  in  that  {specify  in  what 
respects),  and  which  testimony  was  known  by  him,  the 

said  A B ,  to  be  false,  was  material  to  the  issue 

then  being  tried,  and  was  given  with  intent  to  deceive 
the  court. 

''This  at  . ,  on  the of ,  18-." 

If  any  person  not  a  soldier  ^  fraudulently  enlist  in  the 
United  States  service,  the  charge  and  specification  should 
read : « 

Form  18. — Charge  :  "Fraudulent  enlistment,  in  viola- 
tion of  the  62d  Article  of  War." 

(a)  Specification:   "In    that  Private  A B ,  Co. 

— *-,  U.   S.  Infantry,  did,  at  ,  on  the  of 

,  18 — ,  fraudulently  enlist  as  a  soldier  in  the  serv- 
ice of  the  United  States,  by  falsely  representing  that 
he  had  never  been  discharged  from  the  United  States 
service  by  sentence  of  a  military  court  and  by  deliberately 

and  willfully  concealing  from  the  recruiting  officer, , 

the  fact   of  his  dishonorable  discharge  from  ,   on 

,  pursuant  to  sentence  of  court  martial;  and  that  he 

has  at ,  since  said  enlistment,  received  pay  and  allow- 
ances thereunder." 

or, 

(&)  Specification:    "In  that  Private  A B ,  Co. 

, U.  S.  Infantry,  did,  at ,  on  the of , 

18 — ,  he  being  a  minor,  fraudulently  enlist  as  a  soldier  in 
the  service  of  the  United  States  by  falsely  representing 

himself  to  be  over  21  years,  to  wit, years  and 

months  of  age ;  and  that  he  has  at ,  since  said  enlist- 
ment, received  pay  and  allowances  thereunder." 

>  For  case  of  fraudulent  enlistment  by  a  soldier,  see  page  114,  form 
g{b), supra;  and  for  definition  of  "fraudulent  enlistment,"  8eepagel2, 
note  4,  supra. 

2  Sec.  3  of  the  act  of  July  27,  1892;  see  page  97,  note  1,  supra. 


118  MANUAL   FOR   COURTS-MARTIAL. 


STATEMENT  OF  SERVICE.' 

Statement  of  service  of ,  Comimny , Regi- 
ment   .  {Required  by  i)ara(jraj}h  927,  Army  Regula- 
tions.) 

FORMER  SERVICE. 


Date  of  enlistment.      Date  of  discharge.     Character  on  discharge, 


Date  of  present  eulistraent ,  18 — .  ♦ 

Date  of  confinement  under  present  charges , 

18—. 


(Place.) 

(Date.) 


Commanding 


SURGEON'S  REPORT  ON  ALLEGED  DESERTER. 

Fort , 

,  18—. 

Sir  :  In  compliance  with  par. ,  A.  R.,  I  have  the 

honor  to  report  that  I  have  critically  examined , 

an  alleged  deserter,  and  find  him   fit  for  service;    {or) 
unfit  for  service  on  account  of . 


To  the 
Post  Adjutant. 


Post  Surgeon. 


'  See  page  66,  par.  5,  supra.    This  form  will  he  printed  on  official 
letter  paper. 


RECORD  OF  A  GENERAL  COURT-MARTIAL.    119 

RECORD  OF  A  GENERAL  COURT-MARTIAL.' 

Sec.  I.— Form  for  record. 
Page  1.  ^ 

{In  margin.)^ 

Case  1. 

Proceedings  *  of  a  general  court-martial  which  convened 
at , ,  pursuant  to  the  following  order : 

(Here  insert  a  literal  copy  of  the  order  appointing  the  court, 
and,  following  it,  copies  of  any  orders  modifying  the  detail. ) 

Headquarters  Department  of , 

, ,  18-. 

Special  Orders 

No. . 

A  general  court-martial  is  appointed  to  meet  at , 

f  at m.,  on ,  18 — ,  or  as  soon  thereafter 

as  practicable,  for  the  trial  of  such  persons  as  may  he 
properly  brought  before  it. 

DETAIL  FOR  THE  COURT. 

Major ,  5th  Cavalry. 

Captain ,  2d  Artillery. 

Captain ,  assistant  surgeon. 

Ist  Lieutenant ,  10th  Infantry. 

Ist  Lieutenant ,  5th  Cavalry. 

2d  Lieuten ant ,  2d  Artillery. 

2d  Lieutenant ,  10th  Infantry. 

Ist  Lieutenant ,  5th  Cavalry,  judge-advocate. 

'  See  "Hecord  of  proceedings,"  page  65,  supra.  The  record  will  be 
clear  and  legible,  and,  if  practicable,  without  erasure  or  interliuea- 
tion. 

2  The  pages  of  the  record  will  be  numbered  and  margins  of  1  inch 
will  be  left  at  the  top,  bottom,  and  left  side  of  each  page. 

3  Words  inclosed  in  parentheses,  ( ),  or  brackets,  [  ],  are  simply  ex- 
planatory, and  will  not  be  copied  in  the  record. 

*  "Every  party  tried  by  a  general  court-martial  shall,  upon  demand 
thereof,  made  by  himself  or  by  any  person  in  his  behalf,  be  entitled 
to  a  copy  of  the  proceedings  and  sentence  of  such  court."  fll4th 
A.  W.)  Applications  for  copies  under  this  article  will  be  addressed 
to  the  Judge- Advocate-Qener^l.    (Par.  894.  A.  R.) 


120  MANUAL   FOR   COURTS-MARTIAL. 

(//  less  than  thirteen  members  are  detailed,  the  order  will 
state:) 

A  greater  number  of  officers  can  not  be  assembled  with- 
out manifest  injury  to  the  service. 

{In  case  travel  is  necessary,  the  following  sentence  tvill 
he  added:) 

The  journeys  required  in  complying  with  this  order 
are  necessary  for  the  public  service. 

By  command  of  Brigadier-General . 

(Signed)  , 

Assistant  Adjutant- General. 

Fort , 

The  court  met  pursuant  to  the  foregoing  order  at 
o'clock  —  m.^ 

PRESENT.* 

Major ,  5th  Cavalry. 

Captain ,  assistant  surgeon. 

1st  Lieutenant ,  10th  Infantry. 

1st  Lieutenant ,  5th  Cavalry. 

2d  Lieutenant ,  2d  Artillery. 

Ist  Lieutenant ,.  5th  Cavalry,  judge-advocate. 

ABSENT. 

Captain ,  2d  Artillery. 

2d  Lieutenant 10th  Infantry. 

1  "Proceedings  of  trials  shall  be  carried  on  only  between  the  hours 
of  eight  in  the  morning  and  three  in  the  aftei*noon,  except  in  cases 
which,  in  the  opinion  of  the  officer  appointing  the  court,  require 
immediate  example."     (94th  A.  AV.) 

2Iu  the  record  of  the  i)roceedings  of  a  court-martial  at  its  organi- 
zation for  the  trial  of  a  case,  the  officers  detailed  as  members  and 
judge-advocate  will  be  noted  by  name  as  present  or  absent.  In  the 
record  of  the  jiroceedings  of  subsequent  sessions  the  following  form 
of  words  will  be  used,  subject  to  such  modifications  as  the  facts  may 
require:  "Present,  all  the  members  of  the  court  and  the  jmlge-advo- 
cate."  "When  the  absence  of  an  officer  who  has  not  qualified,  or  who 
has  been  relieved  or  excused  as  a  member,  has  been  accounted  for, 
no  further  note  will  be  made  of  it. 


RECORD  OF  A  GENERAL  COURT-MARTIAL.    121 

{If  the  cause  of  absence  is  known,  it  will  he  recorded;  if 
unknoun,  it  will  he  so  stated.)^ 

The  court  then  proceeded  to  the  trial  of  Private 

— - — ,   Battery  ,    .  U.  S.  Artillery,    who,  haviug 

been  brought  before  the  court,  stated  that  he  did  not 
desire  counsel;  (or)  introduced as  counsel. 

[Reporter.]^ 
I was  duly  sworn  as  reporter.^ 

The  order  convening  the  court  was  read  to  the  accused, 
and  he  was  asked  if  he  objected  to  being  tried  by  any 
member  present  named  therein;  to  which  he  replied  in 
the  negative. 

[Challenges.] 

(or)  that  he  objected  to  on  the  following 

grounds : 

(Insert  ohjections.) 

The  challenged  member  stated: 

(Insert  the  statement  of  the  challenged  member,  who 
should  alivays  he  requested  to  respond  to  the  challenge  and 
inform  the  court  upon  its  merits.  Should  the  accused,  after 
this  statement,  desire  to  put  the  challenged  member- upon  his 
voir  dire,  the  record  should  continue:) 

The  accused  having  requested  that  the  challenged 
member  be  sworn  upon  his  voir  dire,* was 


'It  is  the  duty  of  the  judge-advocate  to  ascertain,  if  possible,  the 
cause  of  absence.  If  a  member  is  absent  by  order,  the  number  and 
date  of  order  will  be  given;  if  absent  sick,  a  surgeon's  certificate  of 
sickness  and  inability  to  attend  will  be  furnished  by  the  absent 
member,  and  appended  to  the  record. 

-Tofacilitateuseof  form,  subheads  "reporter,"  "challenges,"  etc., 
are  inserted  and  followed  bj*  marginal  lines.  To  vise  form  in  case  no 
reporter  is  employed,  follow  form  to  "  reporter,"  and  then  omit  as  far 
as  marginal  line  under  "  reporter "  extends.  In  like  manner  omit 
when  necessary  for  other  subheads. 

*The  reporter  must  be  sworn  in  each  case.  For  form  of  oath,  see 
page  29,  par.  4,  supra. 

*For  form  of  oath,  see  page  29,  par.  6,  supra. 

4644 0 


122  MANUAL  FOR   COUIITS-MARTIAL 

duly  sworn  by  the  judge-advocate,  and  testified  as  fol- 
lows:' 

(At  the  close  of  the  examination  of  the  member,  the  record 
should  continue:) 

The  testimony  of  the  challenged  member  w^as  read  to 
him,  and  was  by  him  pronounced  correct. 
(or)  corrected  as  follows :  ^ 

(Insert  corrections.) 

The  challenged  member,  the  accused,  and  judge-advo- 
cate then  withdrew, '  and  the  court  was  closed,  and  on 
being  opened  the  president  announced  in  their  presence 
that  the  objection  of  the  accused  was  not  sustained ^ 

(or)  that  the  objection  was  sustained. then 

withdrew. 

The  accused  was  asked  if  he  objected  to  any  other 
member  present;  ^  to  which  he  replied  in  the  negative. 

(or)  that  he  objected  to on  the  following 

grounds : 

(Insert  ohjeetion  in  full  and  record  as  before.) 
The  members  of  the  court  and  the  judge-advocate  were 
then  duly  sworn. ^ 

[Interpreter.] 
I      (If  an  interpreter  is  required,  he  should  now  be  sworn.) 

[Delay.] 

(If  delay  is  desired  for  cause  known,  application  should 
noiv  be  made  and  the  proceedings  of  the  court  recorded.'' 
If  no  delay  is  requested,  the  record  should  continue:) 

>Tlie  form  of  examination  should  be  similar  to  that  given  for  wit- 
ness forthe  defense,  page  126,  infra.  The  accused  should  first  ask  his 
questions  and  then  the  judge-advocate  and  court  such  as  they  may 
deem  pertinent. 

^Sec  note  1,  page  1.25,  infra. 

3  See  page  65,  par.  4,  supra. 

^In  case  of  a  tie  vote  see  page  22,  note  2,  supra. 

f  Only  one  member  at  a  time  can  be  challenged,  and  a  record  of  the 
proceedings  in  each  case  must  be  made. 

''Whenever  the  same  court-martial  tries  more  than  one  prisoner  on 
separate  and  distinct  charges,  the  court  will  be  sworn  at  the  com- 
mencement of  each  trial  and  separate  proceedings  in  each  case 
prepared. 

'See  page  29,  supra. 


RECORD  OF  A  GENERAL  COURT-MARTIAL.  123 

The  accused  was  then  arraigned  upon  the  following 
charj^es  and  specifications : 

Charge  I. . 

Specification  1st. . 

Specification  3d. . 

Charge  II. . 

[Plea  in  bar.] 
I      To  which  the  accused  submitted  the  following  special 

plea  in  bar  of  trial  :i 
I  (or) 

To  which  the  accused  pleaded  as  follows : 

To  the  Ist  specification,  Ist  charge;  "Guilty;"  {or) 
"Not  guilty." 

To  the  2d  specification,  1st  charge:  "Guilty;"  (or) 
"Not  guilty." 

To  the  Ist  charge;  "Guilty;"  (or)  "Not  guilty." 

To  the  1st  specification,  2d  charge,  etc. 

Sergeant  John  Jones,  Co. , Infantry,  a  witness 

for  the  prosecution,  was  duly  sworn  and  testified  as  fol- 
lows : 

Direct  examination: 

Questions  by  the  judge-advocate: 

Q.  Do  you  know  the  accused?     If  so,  state  who  he  is. 

A.  I  do ;  Private ,  Battery , Artillery. 

(The  succeediiiii  questions  of  the  judge-advocate  and  their 
answers  should  follow  in  order.)  '^ 

>  If  a  8i»ecial  plea  is  made,  the  plea,  the  reply  of  the  judge-advocate, 
and  the  action  of  the  court  thereon  will  be  fully  stated;  see  page  31, 
par.  8,  gupra,  and  page  127,  note  2,  infra. 

*  The  record  should  set  forth  fully  all  the  testimony  introduced  upon 
the  trial,  the  oral  portion  as  nearly  as  practicable  in  the  precise  words 
of  the  witness.  If  the  court  should  decide  to  expunge  any  part,  it 
will  not  be  literally  expunged  or  omitted  from  the  record,  but  will 
not  be  thereafter  considered  as  part  of  the  evidence. 


124  MANUAL  FOR  COURTS-MARTIAL. 

Cross-examination  : 

Questions  by  the  accused : 
Q. ? 

(If  the  accused  declines  to  cross-examine  the  witness,  the 
record  should  state:) 
The  accused  declined  to  cross-examine  the  witness. 

Re-examination  : 
Questions  by  the  judge-advocate: 
Q-' ? 

Examination  by  the  court: 

Q. ? 

A. . 

[Objection  to  question.]* 

Question  by  a  member:  ? 

To  this  question,  the  accused  (or  party  objecting)  ob- 
jected as  follows: 

(Insert  objection.) 

To  which  the  member  replied : 

(Insert  reply.) 

The  accused  and  judge-advocate  withdrew  and  the 
court  was  closed,  and  on  being  opened  the  president 
announced  in  their  presence  that  the  objection  was  sus- 
tained. 
(or)  was  not  sustained. 

(In  the  latter  case  the  record  should  continue:) 

The  question  was  then  repeated  by  the  judge-advo- 
cate. 

(At  the  close  of  the  examination  of  each  witness,  the  record 
should  state :) 

•  If  a  question,  put  by  a  member,  is  objected  to  by  another  member, 
the  judge-advocate,  or  the  accused,  and  the  objection  is  sustained,  i^t 
will  be  recorded  as  a  question  by  a  member,  and  not  answered;  if  the 
objection  is  not  sustained,  it  will  be  recorded  as  a  question  by  the 
court,  repeated  by  the  judge-advocate,  and  must  be  answered.  If  a 
question  is  objected  to  by  anyone,  at  any  time  during  the  trial,  the 
above  method  of  recording  the  action  of  the  court  will  be  followed. 


RECORD  OF  A  GENERAL  COURT-MARTIAL.    125 

The  testimony  of  the  witness  was  read  to  him,  and  by 
him  pronounced  correct. 
(or)  corrected  as  follows :' 
(State  corrections. ) 

(At  the  close  of  the  prosecution,  the  record  should  continue :) 
The  judge- advocate  announced  that  the  prosecution 
here  rested. 

(//  the  court  adjourns  to  meet  the  following  day,  the  record 
should  continue:) 

The  court  then,  at o'clock  —  m.,  adjourned  to  meet 

at o'clock  —  m.,  to-morrow. 

C D , 

Ist  Lieut. , 

Judge- Advocate.^ 

Fort , 

,  18-. 

The  court  met,  pursuant  to  adjournment,  at o'clock, 


All  the  members  of  the  court  and  the  judge-advocate. 

The  accused,  his  counsel,  and  the  rejMjrter  were  also 
present. 

The  proceedings  of were  read  *  and  approved. 

(or)  corrected  as  follows : 

'If  a  witness  desires  to  make  corrections  after  hearing  his  testi- 
mony read,  his  statement  in  explanation  will  be  recorded.  Changes 
in  the  testimony  as  originally  given  will  not  be  i)ermitted.  For  the 
sake  of  brevity,  if  a  number  of  witnesses  are  examined  and  no  cor- 
rections are  found  necessary,  a  single  remark,  at  the  close  of  the  ex- 
amination of  witnesses,  that  the  testimony  of  each  witness  was  read 
to  him  and  by  him  pronounced  correct,  will  be  sufficient. 

2 The  judge-advocate  will  sign  each  day's  proceedings.  (Par.  954, 
A.R.) 

*See  page  120,  note  2,  supra. 

■•The  reading  of  the  record  of  the  preceding  day  may  be  dispensed  Jf  ^  ^"^-^ 
with,  but  this  should  not  be  done  without  some  strong  reason,  o^/Z-AyY 
whicli  the  court  will  judge.    The  accused  should  be  present  at  the  >  -^p   ' 

reading.    See  page  65,  note  1,  supra.  ^^/, 


126  MANUAL  FOR   COURTS-MARTIAL. 

{In  latter  case,  enumerate  corrections,  giving  page  and  line 
on  ivMch  they  occur.) 

Corporal  Jolin  Smith,  Co. , Infantry,  a  witness 

for  the  defense,  was  duly  sworn  and  testified  as  follows: 

Direct  examination: 
Question  by  the  judge-advocate:     Do  you  know  the 
accused  ?    If  so,  state  who  he  is. 

Questions  by  the  accused: 

Q. ? 

A. . 

( The  examination  should  he  conducted  as  in  case  of  a  witness 
for  the  prosecution,  the  judge-advocate  cross-examining,  and 
the  accused,  if  he  so  desires,  re-examining  the  witness.) 

(Should  the  accused  ivish  to  testify  in  his  own  behalf,  the 
record  will  continue:) 

The  accused,  at  his  own  request,  was  duly  sworn  as  a 
witness,  and  testified  as  follows : 

(The  examination  of  the  accused  should  he  conducted  in  the 
same  manner  as  that  of  any  other  ivitness.) 

(If  the  accused  has  no  other  witness  to  call,  the  record 
should  continue : ) 

The  accused  had  no  further  testimony  to  offer  and  no 
statement  to  make. 

(or)  having  no  further  testimony  to  offer,  made  the  fol- 
lowing verbal  statement  in  his  defense. 
(or)  having  no  further  testimony  to  offer,  submitted  a 

1  Though  this  is  a  witness  for  the  defense,  the  jndgeadvocate  will 
ask  the  preliminary  question  for  the  purpose  of  determining  his 
identification  of  the  accused. 


RECORD  OF  A  GENERAL  COURT-MARTIAL.    127 

written  statement  in  his  defense,  which  was  read  to  the 
court,  and  is  hereto  appended  and  marked  A.  ^ 

(or)  requested  until  o'clock  —  m.  to  prepare  his 

defense. 

(If  the  court  takes  a  recess  during  the  time  ashed  for,  the 
record  will  continue :) 

The  court  then  took  a  recess  until  —  o'clock  — ,  m. ;  at 
which  hour  the  members  of  the  court,  the  judge-advo- 
cate, the  accused,  his  counsel,  and  the  reporter  resumed 
their  seats. 

(Or,  if  the  court  has  other  business  before  it,  the  record  may 
continue:) 

The  court  then  proceeded  to  other  business  and  at 

o'clock  — .  m.  resumed  the  trial  of  this  case;  at  which 
hour,  etc. 

The  accused  submitted  his  defense,  which  was  read 
to  the  court,  and  is  hereto  appended  and  marked  B.^ 

Tlie  judge-advocate  submitted  the  case  without  remark. 
(or)  replied  as  follows  r^ 

(Insei't  reply .) 
(or)  submitted  and  read  to  the  court  a  written  reply, 
which  is  hereto  appended  and  marked  C. 

The  accused  and  judge-advocate  then  withdrew  and  the 

'  All  documents  and  papers  made  part  of  the  proceedings,  or  copies 
of  them,  will  be  appended  to  the  record,  in  the  order  of  their  introduc- 
tion, after  the  space  left  for  the  remarks  of  the  reviewing  authority, 
and  marked  in  such  a  manner  as  to  afford  easy  reference.  It  is  not 
necessary  to  encumber  a  record  by  spreading  upon  it  documents  or 
other  writings,  or  matter  excluded  by  the  court.  The  record  should 
simply  specify  the  character  of  the  writings  and  the  grounds  upon 
which  they  were  ruled  out. 

»  The  statement  of  the  accused,  or  argument  in  his  defense,  and 
all  pleas  in  bar  of  trial  or  in  abatement,  when  in  writing,  should  be 
signed  by  the  accused,  referred  to  in  the  proceedings  as  having  T)een 
submitted  by  him,  and  appended  to  the  record,  whether  he  ic  de- 
fended by  counsel  or  not. 

*  The  judge-advocate  is  entitled  by  usage  to  sum  up  the  case  and 
present  an  argument  at  the  conclusion  of  the  trial,  even  though  the 
accused  declines  to  make  argument  or  statement. 


128  MANUAL   FOR   COURTS-MARTIAL. 

court  was  closed^  and  finds  the  accused,  Private , 

Battery , U.  S.  Artillery: 

Of  the  1st  specification,  1st  charge:  ''Guilty;"  (or) 
"Not  guilty." 

Of  the  2d  speciticationf  Ist  charge:    ''Guilty,  except 

the  words  ' /  and  of  the   excepted  words  Not 

guilty." 

Of  the  first  charge :  "  Guilty ;  "  (or)  "  Not  guilty ; "  (or) 
**Not  guilty,  but  guilty  of,  etc., ." 

Of  the  Ist  specification,  2d  charge,  etc. 

[Previous    convictions    when    accused    is     found 

GUILTY.] 

(//  the  offense  is  of  such  character  as  to  admit  of  evidence 
of  previous  convictions^^  and  the  accused  is  found  guilty, 
the  record  should  continue:) 

The  judge-advocate  and  accused  were  then  recalled 
and  the  court  opened ;  the  judge-advocate  then  stated 
that  he  had  no  evidence  of  previous  convictions  to 
submit. 

(or)  the  judge-advocate  then  read  the  evidence  of  pre- 
vious convictions  ^  hereto  appended  and  marked  D,  E., 
etc. 

(If  the  accused  has  any  statement  to  make  in  regard  to 
his  previous  convictions,  it  tvill  he  recorded.) 

The  accused  and  judge-advocate  then  withdrew  and 

the  court  was  closed,  and  sentences  him,  Private 

,  Battery , U.  S.  Artillery, . 

[No  previous  convictions,  or  accused  acquitted.] 
(If  the  offense  is  not  of  such  character  as  to  admit  of  evi- 
dence of  previous  convictions,  or  if  the  accused  is  acquitted, 
the  record,  after  the  findings  are  stated,  should  continue:) 
And  the  court  does  therefore  sentence  him,  etc. 
(or)  does  therefore  acquit  him,  Private ,  Bat- 
tery   , U.  IS.  Artillery. 


'  See  page  59,  section  1,  supra. 

'  See  ' '  Previous  convictions,  '  page  49,  supra.  "When  the  proof  pro- 
duced 18  the  copy  furnished  to  the  company  or  other  commander,  in 
acccordance  with  par.  £32,  A.  R.,  it  will  he  returned  to  him  and  a 
copy  of  it  attached  to  the  record  of  the  general,  regimental,  or  garri- 
son court  trying  the  case.     (Par.  929,  A.  R.) 


RECOUD  OF  A  GENERAL  COURT-MARTIAL.     129 

The  j  udge-advocate  was  then  recalled  and  the  court 

at .  m.  proceeded  to  other  business. 

(or)  adjourned  until .  m.,  the inst. 

(or)  adjourned  to  meet  at  the  call  of  the  president.^ 

(or,  on  completion  of  the  trial  of  the  last  case  before  the 

court),  adjourned  sine  die. 

A B , 

Major , 

President. 

C D , 

1st  Lieut. , 

Judge-Advocate. 
(At  least  two  blank  pages  will  be  left  after  the  adjournment 
for  the  decision  and  orders  of  the  reviewing  authority.) 

(The  x>apers  forming  the  complete  record  will  be  fastened 
together  at  the  top,  and  the  record  folded  in  four  folds,  and 
briefed  on  the  first  fold  as  follows  :)  ^ 


Private,  Co. , . 


Trial  by  general  court-martial 

at ; 

commencing ,  18 — ; 

ending ,  18 — . 

President : 

Major , 

Judge- Advocate : 

1st  Lieut. , 


1  The  hour  of  adjournment  will  be  stated,  unless  the  court  is 
authorized  to  sit  without  regard  to  hours. 

2  When  the  record  is  completed,  the  judge-advocate  will  forward  it 
without  delay  to  the  convening  authority.  (Par.  955,  A.  R. )  See 
also  page  67,  par.  3,  and  page  73,  par.  1,  supra. 


4644 6* 


130  MANUAL  FOR  COURTS-MARTIAL. 

Sec.  II. — Form  for  revision  of  record.^ 

Fort , 

,  18-. 

The  court  reconvened  at o'clock  — .  m.,  pursuant 

to  the  following  order : 
{Insert  copy  of  order.) 
(or)  pursuant  to  the  following  indorsement: 
{Insert  copy  of  indorsement.) 


{Insert  names  of  ahsentees,  and  state  cause  of  absence,  if 
known.) 

The  judge-advocate  read  to  the  court  the  foregoing 
order. 
{or)  the  foregoing  indorsement  of  the  convening  authority. 

The  judge-advocate  then  withdrew,  and  the  court  was 
closed  and  revokes  its  former  findings,  and  finds  the 
accused,  etc. 

{or)  revokes  its  former  sentence,  and  sentences  the  ac- 
cused, etc. 

{or)  respectfully  adheres  to  its  former  findings  and  sen- 
tence. , 
{or)  amends  the  record  by,  etc.^ 

'  See  "  Revision  of  record,"  page  66,  supra. 

2  If  the  findings  and  sentence  are  to  be  considered,  all  the  members 
who  voted  on  them  should,  if  possible,  be  present.  At  least  five 
members  of  the  court,  who  acted  upon  the  trial,  must,  and  the  judge- 
advocate  should,  be  present  at  a  revision ;  but  it  is  in  general  neither 
necessary  nor  desirable  that  the  accused  should  be  present. 

3  See  page  66,  par.  2,  supra. 


RECORD  OF  A  SUMMARY  COURT. 


131 


The  judge-advocate  was  then  recalled  and  the  court 

at .  m.,  etc. 

A B , 

Major , 

President. 

C D , 

Ist  Lieut.  , 

Judge-Jdvocate. 
{The  record  of  revision  will  he  appended  to  the  original 
proceedings  and  the  whole  indorsed  and  forwarded  as  before.) 


RECORD  OF  A  SUMMARY  COURT. 

Sec.  I.— Form  fou  record. 
Record  of  summary  court  at  ,  . 


Name,  rank, 

companj'.and 

regiment. 


tt 


Synopsis  of 
specitication. 


3 

h 

a" 

3 
2} 

Sentence, 
witli  signa- 
ture of  trial 
officer 


5?a 


'  Blank  forms  for  summary  court  record  and  for  monthly  report  of 
cases  tried  (for  form,  seepage  132,  \nfra)  will  be  furnished  by  the 
Adjutant-General  of  the  Army.  The  new  form  for  the  copy  of  sum- 
mary court  record,  to-be  used  as  evidence  of  previous  convictions, 
ia  intended  for  the  purpose  of  reducing  this  evidence  to  the  smallest 
possible  space  and  bulk.  The  blanks  are  not  intended  for  only  one 
case  each,  but  for  as  many  cases  as  there  is  room  for  on  the  blank. 
The  margin  at  the  left  of  the  blank  is  intended  for  binding  with  the 
court-martial  record.  For  instructions  regarding  evidence  of  pre- 
vious convictions  by  summary  court,  see  page  49,  par.  2,  and  page  78, 
par.  13,  supra. 


132 


MANUAL  FOR  COURTS-MAETIAL. 


Sec.  II. — Remarks  on  record. 

1.  The  synopsis  of  specification  will  be  as  brief  as  is 
consistent  with  showing,  in  connection  with  the  Article 
of  War  violated,  the  nature  of  the  offense  and  the  date  of 
its  commission.  For  example,  under  the  32d  Article  of 
War,  the  synopsis  may  be,  ''From  1  a.  ra.  to  10  p.  m., 
October  10,  1892;'^  under  the  33d  Article,  ''Absent  from 
reveille  roll  call,  October  10,  1892 ;  "  and  under  the  38th 
Article,  "At  drill,  October  10,  1892."  So  under  the  62d 
Article  it  may  be,  "Drunk  in  quarters,  October  10, 1892 ;  " 
"Absent  from  fatigue,  October  10,  1892;"  "Absent  from 
duty  as  company  cook,  October  10,  1892,"  etc. 

The  sentence  will,  when  practicable,  be  recorded  in 
brief,  as  for  example:  " Forfeiture  of  $10  and  ten  days' 
confinement  at  hard  labor." 

2.  "  When  a  post  commander  sits  as  a  summary  court,  no 
approval  of  the  sentence  is  required  by  law,  but  he  should 
sign  the  sentence  as  post  commander  and  date  his  sig- 
nature." ^ 

3.  The  name  of  the  post  will  not  be  given  under  the 
head  of  "Action  of  commanding  officer,  with  date  and 
signature,"  as  this  information  appears  at  the  head  of 
each  page  of  the  record. 


MONTHLY  REPORT  OF  SUMMARY  COURT  CASES. 

Report  of  cases  tried  hy  summary  court  at ,  for  the 

month  of ,  1S9 — . 


V 

CO 

^ 

^3 

Sentence. 

Name,  rant, 

company,  and 

regiment. 

^d 

Synopsis  of 

.-1 

(If  mitigated,  give 
sentence  as  mitigat- 

specification. 

bio 

u  > 

ed  only.  Signature 
of  trial  officer  rot  to 

_o 

13 

be  copied.) 

^ 

< 

PR 

^ 

Par,  933,  A.  R. 


RECORD  OF  A  FIELD  OFFICER'S  COURT.      133 
RECORD  OF   A  FIELD  OFFICER'S  COURT.' 

Record  of  a  field  officer's  court  appointed  by  the  follow- 
ing order : 

Hdqrs.  Camp , , 

,  189—. 

Special  Orders,  > 

No. .  S 

Major  ,  Infantry,  is  appointed  field  officer's 

court  for  the Infantry. 

By  order  of  Brig.  Gen. , 


Camp 
Cases  tried.'^ 


Asst.  Adjt.  Genl. 

.  189—. 


Name, 
rank,  com- 
panip-,  and 
regiment. 


Synopsis 
of  specifica- 
tion. 


o  a 
Pes 


a" 


Sentence, 
with  signa- 
ture of 
court. 


Action  of 
brigade  com- 
mander,* 
with  date 

and 
signature. 


'  See  page  80,  supra. 

2  The  record  of  each  day's  proceedings  will  be  forwarded  without 
delay  to  the  authority  appointing  the  court  for  his  action  and  orders. 

*If  court  is  appointed  by  the  commanding  officer  of  the  post  or 
camp,  order  and  form  will  be  altered  accordingl3'.  See  page  80,  par. 
2,  supra. 


134  MANUAL    FOR   COURTS-MARTIAL. 

RECORD  OF  A  GARRISON  COURT-MARTIAL. » 

Sec.  I.— Form  for  record. 
Case . 

Proceedings  of  a  garrison  court-martial   convened  at 

,  pursuant  to  the  following  order : 

Fort , 

Orders,  ) 
No. .\ 

A  garrison  court-martial  will  convene  at  this  post  at 
o'clock  a.  m.,  on ,  18—,  or  as  soon  there- 
after as  practicable,  for  the  trial  of  Private , 

Company , Infantry,  he  having  objected  to  trial 

by  summary  court. 

(or)  the  post  (or  other)  commander  being  the  accuser 

and  the  only  officer  present  with  the  command. ^ 

DETAIL  FOR  THE   COURT. 

Captain . 

1st  Lieutenant . 

2d  Lieutenant . 

2d  Lieutenant ,  judge-advocate. 

By  order  of . 

(Signed) , 

1st  Lieutenant , 

Post  Adjutant. 

Fort , 

,18- 

The  court  met,  pursuant  to  the  foregoing  order,  at 
o'clock  — .  m.^ 

'  The  form  of  record  for  a  garrison  court-martial  differs  from  that 
for  a  general  court-martial  only  in  respect  to  the  form  of  the  order 
appointing  the  court.  The  form  here  given  is  that  for  a  case  in 
which  a  plea  of  "Guilty"  is  entered;  if  the  prisoner  pleads  "Not 
guilty,"  or  makes  a  special  plea,  the  form  for  record  of  a  general 
court  will  he  followed. 

'See  page  81,  par.  3,  supra. 

3If  the  order  contains  the  sentence,  "The  court  may  sit  without 
regard  to  hours,"  the  hours  of  meeting  and  adjournment  need  not 
he  recorded. 


RECORD  OP  A  GARRISON  COURT-MARTIAL.      135 


Captain . 

Ist  Lieutenant . 

2d.  Lieutenant . 

2d  Lieutenant ,  judge-advocate. 

The  court  then  proceeded  to  the  trial  of  Private 

,  Company , Infantry,  who  was  brought  he- 
fore  the  court,  and  having  heard  the  order  convening 
it  read,  was  asked  if  he  had  any  objection  to  being  tried 
by  any  member  named  therein;  to  which  he  replied  in 
the  negative. 

The  members  of  the  court  and  the  judge-advocate  were 
then  duly  sworn,  and  the  accused  was  arraigned  upon  the 
following  charge  and  specification : 

Charge: . 

Specification : . 

To  which  the  prisoner  pleaded : 

To  the  specification— "Guilty." 

To  the  charge—"  Guilty." 

The  judge-advocate  announced  that  the  prosecntion 
here  rested. 

The  prisoner  stated  that  he  had  no  testimony  to  offer 
or  statement  to  make. 

The  accused  and  judge-advocate  then  withdrew,  and 

the  court  was  closed  and  finds  the  accused,  Private 

,  Company , Infantry. 

Of  the  specification— "Guilty." 

Of  the  charge— "Guilty." 

The  judge-advocate  and  the  accused  were  then  recalled 
and  the  court  opened;  the  judge-advocate  stated  that  he 
had  no  evidence  of  previous  convictions  to  submit. 
(or)  read  the  evidence  of  previous  convictions  hereto 
appended  and  marked  A,  B,  etc. 

The  accused  and  judge-advocate  then  withdrew,  and 

the  court  was  closed  and  sentences  him,  Private , 

Company , Infantry,  etc. 


136  MANUAL   FOR   COURTS-MARTIAL. 

The  judge-advocate  was  then  recalled  and  the  court 

at .  m.,  etc. 

A B , 

Captain , 

Pi^esidenf. 

C D , 

Sd  Lieut. , 

Judge- Advocate. 
(A  sine  die  adjournment  will  headded  to  the  last  case  he/ore 
the  court,  and  the  record  of  each  case  folded  and  indorsed  m 
the  same  manner  as  that  for  a  general  court-mariial  ) 
Sec.  II. — Remarks  on  the  record. 

1.  The  decision  and  orders  of  the  post  commander, 
properly  dated  and  over  his  official  signature,  will  follow 
immediately  after  the  sentence,  adjournment,  or  other 
final  proceeding  of  the  court  in  the  case. 

2.  '^The  complete  proceedings  of  a  garrison  or  regi- 
mental court  will  be  transmitted  without  delay  by  the 
post  or  regimental  commander  to  department  head- 
quarters." ' 


RECORD  OF  A  REGIMENTAL  COURT- MARTI AL.^ 

Case . 

Proceedings  of  a  regimental  court-martial  convened  at 

,  pursuant  to  the  following  order : 

Fort , , 

, ,  189-. 

Orders, 
No. . 

A  regimental  court-martial  will  convene  at  this  post 
at o'clock  a.  m.,  on , ,  189 — ,  or  as  soon  there- 
after as  practicable,  for  the  trial  of  Private  , 

Company , Infantry,  he  having  objected  to  trial 

by  summary  court. 

(or)  the  post  (or  other)  commander  being  the  accuser 
and  the  only  officer  present  with  the  company.'' 

»  Par.  956,  A.  K. 

'  The  form  of  record  for  a  regimental  court  diflers  from  that  for  a 
garrison  or  a  general  court  only  in  respect  to  the  order  convening  the 
court, 

3  See  page  82,  par.  3,  supra. 


FORMS  FOR   SENTENCES.  137 

DETAIL  FOR  THE  COURT. • 

(Complete  record  as  in  case  of  a  garrison  or  general  court.) 


rORMS   FOR   SENTENCES. 

Form  1.  Reduction:  *  *  *  ''to  be  reduced  to  the 
ranks."" 

Form  2.  Confinement:     *     *     *    "     **to  be  confined  at 

hard  labor,  under  charge  of  the  post  guard,  for ( — ) 

days." 

Form  3.  Forfeiture:  *  *  *  "to forfeit ( — )  dol- 
lars of  his  pay."^ 

Form  4.  Confinement  and  forfeiture:  *  *  *  "to  be 
confined  at  hard  labor,  under  charge  of  the  post  guard, 

for ( — )  months,  and  to  forfeit ( — )  dollars  per 

month  for  the  same  period." 

Form  5.  Dishonorable  discharge  and  forfeiture  of  imy  and 
allowances:  *  *  *  "to  be  dishonorably  discharged  the 
service  of  the  United  States,  forfeiting  all  pay  and  allow- 
ances due  him."  ^ 

Form  6.  Dishonorable  discharge,  forfeiture  of  pay  and 
allowances,  and  confinement :  ^  *  *  "to  be  dishonor- 
ably discharged  the  service  of  the  United  States,  forfeit- 
ing all  pay  and  allowances  due  him,  and  to  be  confined  at 

1  See  page  82;  also  page  89,  note  1,  sxipra. 

2 See  pages  60  and  63,  and  page  78,  par.  15,  supra. 

^Detention  of  pay  is  no  longer  authorized,  and  the  act  of  June  16, 
1890,  providing  for  retention  of  $4  per  month  of  a  soldier's  pay  during 
first  year  of  enlistment  was  repealed  February  12,  1895. 

*The  clause  "  or  to  become  due,"  so  frequently  added  after  "allow- 
ance due,"  in  such  sentences  is  superfluous,  for  the  reason  that  the 
forfeiture  takes  effect  on  the  date  of  the  order  promulgating  the 
sentence. 


138  MANUAL    FOR    COURTS-MARTIAL. 

hard  labor  at  such  post  (or  in  sucli  penitentiary)  as  the 

reviewing  authority  may  direct,  for ( — )  years." 

If  the  period  of  confinement  is  less  than  one  year,  such 
a  sentence  should  read :  *  *  *  '''at  hard  labor,  under 
charge  of  the  post  guard,  for ( — )  months." 


SUMMONS  FOR  A  MILITARY  TVITNESS. 

Fort , 

,  18—. 

To , 

Infantry. 

Sir:  You  are  hereby  summoned  to  appear  on  the 

of 18 — ,  at o'clock  — .  m.,  before  a  general  court- 
martial,  convened  at ,  by  Special  Orders,  No. , 

from ,  as  a  witness  in  the  case  of  Private  A B , 

Co. , Infantry. 

C D , 

Judge- Advocate. 


SUBPCRNA  FOR  CIVILIAN  WITNESS. 

United  States  ) 

vs.  >  Suhpoena. 

The  President  of  the  United  States,  to ,  greeting: 

You  are  hereby  summoned   and  required  to  be  and 

appear  in  person  on  the  day  of ,  18 — ,  at  

o'clock  — .  m.,  before  a  general  court-martial  of  the  United 

States,  convened  at ,  by  Special  Orders,  No. , 

Headquarters ,  dated ,  18 — ,  then  and 

there  to  testify  and  give  evidence  as  a  witness  for  the 

in  the  above-named  case.     And  have  you  then  and  there 
this  precex)t. 
Dated  at ,  this day  of ,  18 — . 

Judge-Advocate  of  the  Court-Martial. 


SUBPCENA  DUCES  TECUM.  139 

SUBPOENA  DUCES  TECUM. 

(Civilian  witness.) 

United  States  ) 

vs.  >  Suhpcena. 

The  President  of  the  United  States,  to ,  greeting: 

You  .arc  hereby  summoned  and  required  to  be  and  appear 

in  person  on  the day  of ,  18 — ,  at o'clock  — .  ra., 

before  a  general  court-martial  of  the  United  States,  con- 
vened at by  Special  Orders,  No. ,  Headquar- 
ters   ,  dated ,  18 — ,  then  and  there  to  testify 

and  give  evidence  as  a  witness  for  the in  the  above- 
named  case;  and  you  are  hereby  required  to  bring  with 
you,  to  be  used  in  evidence  in  said  case,  the  following- 
described  documents,  to  wit : .     And  have  you 

then  and  there  this  precept. 

Dated  at ,  this day  of ,  18 — . 

Judge-Advocate  of  the  Court-Martial. 


RETURN   OF  SERVICE. 

(Indorsement  of  preceding  tvrits.y 

United  States 
vs. 


,  18-. 

I  certify  that  I  made  the  service  of  the  within  sub- 
poena on ,  the  witness  named  therein,  by  per- 
sonally delivering  to  him  in  person  a  duplicate  of  the 
same  at ,  on  the day  of ,  18 — . 


'  [  ss. 

,  being  duly  sworn,  on  his  oath  states  that  the 

foregoing  certificate  is  true. 

•  On  the  back  of  each  form  of  writ  are  forms  for  both  certificate 
ami  affidavit.  It  is  not  necessary  to  make  the  affidavit  unless  the 
witness  bo  in  default  and  it  is  proposed  to  issue  process  to  compel 
attendance.  In  sucli  case  the  affidavit  can  be  filled  out  from  the 
certificate  made  at  the  time  of  service. 


140  MANUAL  FOR   COURTS-MARTIAL. 

Subscribed  aud  sworn  to  this day  of ,  18 — ,  be- 
fore nie.i 


WARRANT  OF  ATTACHMENT. 

United  States 


The  President  of  the  United  States,  to ,  greeting  : 

Whereas ,  of ,  was  on  the day  of 

,  18 — ,  at ,  duly  subpcpnaed  to  appear  and  attend 

at , ,  on  the day  of ,  at o'clock  —  m., 

before  a  general  court-martial  duly  convened  by  Special 

Orders,  No. ,  dated  Headquarters  Department  of , 

18 — ,  to  testify  on  the  part  of  the  in  the 

above  entitled  case ;  and  whereas  he  has  failed  to  appear 
and  attend  before  said  general  court-martial  to  testify  as 
by  said  subpoena  required,  and  whereas  he  is  a  necessary 
and  material  witness  in  behalf  of  the in  the  above- 
entitled  case ; 

Now,  therefore,  by  virtue  of  the  power  vested  in  me,  the 
undersigned,  as  judge-advocate  of  said  general  court- 
martial,  by  section  1202  of  the  Revised  Statutes  of  the 
United  States,  you  are  hereby  commanded  and  empow- 
ered to  apprehend  and  attach  the  said ,  wherever 

he  may  be  found  within  the of ,  2  and  forthwith 

bring  him  before  the  said  general  court-martial  assembled 
at ,  to  testify  as  required  by  said  subpoena. 


Judge- Advocate  of  said 
General  Court- Martial. 

Dated , 

,  18-. 

>  After  service,  as  above  indicated,  the  original  subpoena  should  be 
at  once  returned  to  the  judge-advocate  of  the  court;  if  tlie  witness 
can  not  be  found,  the  judge-advocate  should  he  so  informed.  If  a 
civilian  witness  be  summoned  from  a  distance,  pars.  6  and  7,  page  144, 
infra,  will  be  copied  on  back  of  subprena,  to  enable  witness  to  keep 
a  proper  memorandum  of  expenses. 

'  State,  Territory,  or  District  where  the  court  sits. 


INTERROGATORIES  AND  DEPOSITION.       141 

INTERROGATORIES  AND  DEPOSITION. 

interrogatories. 

The  United  States  ) 

V8.  >  To .     {Name  of  officer  who  is  to 

)      cause  the  deposition  to  be  taken.) 

Interrogatories  and  cross-interrogatories  to  be  pro- 
pounded under  the  91st  Article  of  War  to ,  a 

witness  for  the {prosecution  or  defense)  in  the  above- 
entitled  case,  now  pending  and  to  be  tried  before  the 
general  court-martial,  convened  at ,  by  para- 
graph   ,  Special  Orders,  No. ,  Headquarters  Depart- 
ment of ,  dated ,  189 — . 

1st  interrogatory : ? 

2d  interrogatory : ? 

Etc. 

1st  cross-interrogatory : ? 

2d  cross-interrogatory: ? 

Etc.  .' 


DEPOSITION, 

,  the  witness  above  named,  being  first  duly 

sworn,  doth  depose  and  say  for  full  answers  to  the  fore- 
going interrogatories,  as  follows: 

To  the  1st  interrogatory : . 

To  the  2d  interrogatory : . 

Etc.  . 

{Signature  of  witness.) 

Subscribed  and  sworn  to  before  me  this day  of , 

189—. 


>  To  be  signed  by  the  parties  or  party  propoundiug  the  interroga- 
tories antl  cross-interrogatories.  If  the  witness  is  for  the  prosecu- 
tion and  there  are  no  cross-interrogatories,  the  judge-advocate  will 
certify  that  the  defense  had  an  ojjportunity  to  propound  them.  (See 
Qlst  A.  W.)  With  the  consent  of  the  opposite  party  the  deposition 
of  a  witness  residing  within  the  State,  Territory  or  District  in  which 
the  court  sits  may  be  taken  and  read  in  evidence.  A  simple  consent 
entered  on  this  form  will  be  sufficient. 

2  The  jurat  to  be  signed  by  the  officer  administering  the  oath,  who 
will  add  his  oflicial  designation.  (See  page  36,  par.  3,  supra.)  If  the 
oath  is  administered  by  a  notary  public,  his  seal  will  be  affixed  to  the 
deposition. 


142  MANUAL   FOR    COURTS- MARTIAL. 

,  18—. 

I, ,  the  officer  desiguated  to  cause  the  deposi- 
tion of  the  said  to  be  taken  on  the  foregoing 

interrogatories  and  cross-interrogatories,  do  certify  that 
it  was  duly  made  aud  taken  under  oath. 


ACCOUNT  OF  CIVILIAN  TV^ITNESS. 

The  United  States  to ,  Br. 


Expenses  as  witness  before  a  military  court 
convened  under  annexed  order. 

From ,  189-  to ,  189— 

For  mileage  from to aud 

return,    ueiug  miles,   at  5  cents  per 

mile 

For  allowance  while  traveling  to  and  from 
said  court,  between  the  above  dates,  inclu- 
sive,   days,  at  $1.50  per  day 

For  allowance  while  in  attendance  on  said 

court,  from ,  189—,  to ,  189—, 

as  per  judge-advocate's  certificate  hereon, 
days,  at  $1.50  iier  day 

Total 

From ,  189—,  to ,  189- 

For  actual  cost  of  travel  from to 

and  return,  as  per  memorandum 

annexed 

For  actual  cost  of  meals  and  rooms  wliile 
traveling  to  and  from  said  court,  between 
above  dates,  inclusive, days , 

For  actual  cost  of  meals  and  rooms  while  in 

sittendance  on  said  court,  from , 

189—,  to ,  189—,  as  per  judge- 
advocate's  certificate  hereon,  days 

Total : 


Dolls. 


Cts. 


s  ^ 

■%  § 

CS   fj    5j 

s  a 

I  e 

u  > 

o  o 


I  solemnly  swear  that  the  above  account  is  correct ;  that 
I  have  not  been  furnished  with  Government  transporta- 
tion for  any  part  of  the  journey  for  which  travel  fare  is 
charged,  and  that  the  journey  was  performed  without 
unnecessary  or  avoidable  delay. 

,  Witness. 


ACCOUNT   OF   CIVILIAN  WITNESS.  143 

Sworn  to  aud  subscribed  before  me  at on  this 

day  of ,  189—. 


Judge-Advocate. 

Received  this day  of ,  189 — ,  of  Major , 

paymaster,  U.  S.  Army,  dollars,  in  full  of  the  above 

account,  by  check  No.  ,  on 

,  Witne88. 

[In  duplicate.] 

judge-auvocate's  certificate. 

(On  hack  of  form.) 

I  certify  that ,  a  civilian,  has  been  in  attend- 
ance as  a  material  witness  from ,  189 — ,  to , 

189 — ,  inclusive,  before  a  general  court-martial  duly  con- 
vened at  this  i)lace,  and  that  lie  was  duly  summoned 
thereto  from . 


Judge- Advocate 

Place, . 

Date, ,  189—. 

(Note. — //  the  witness  be  "  in  Government  emplog"  these 
words  will  he  inserted  in  the  above  certificate  after  the  word 
"  civilian.") 

rules  governing  accounts  of  civilian  witnesses. 

The  Paymaster-General  is,  under  paragraphs  962-966, 
Army  Regulations,  governed  by  the  following  rules  in  the 
treatment  of  vouchers  for  travel  expenses  of  civilian  wit- 
nesses before  military  courts: 

1.  The  voucher  must  be  accompanied  by  a  copy  of  the 
order  convening  the  court,  with  the  original  summons  in 
the  case,  or,  if  the  attendance  was  authorized  bj^  military 
order,  by  the  original  order.  In  the  absence  of  the  origi- 
nal order  or  summons,  certified  copies  of  the  same  will  be 
accepted. 


144  MANUAL  FOR   COURTS-MARTIAL. 

2.  The  affidavit  of  the  witness  (on  face  of  voucher)  and 
the  judge-advocate's  certificate  (on  hack  of  voucher)  are 
required  in  all  cases.  The  voucher  and  all  accompanying 
papers  must  be  in  duplicate. 

3.  The  items  of  expenditure  authorized  in  paragraphs 
962  and  963,  Army  Regulations,  will  he  set  forth  in  detail 
in  a  memorandum  which  will  be  attached  to  each  voucher. 
No  other  items  will  be  allowed.  The  correctness  of  the 
items  will  be  attested  by  the  affidavit  of  the  witness,  to 
be  made,  when  practicable,  before  the  judge-advocate. 

4.  The  certificate  of  the  judge-advocate  will  be  evi- 
dence of  the  fact  and  period  of  attendance,  and  will  be 
made  on  the  voucher. 

5.  Upon  execution  of  the  affidavit  and  certificate  the 
witness  will  be  paid  upon  his  discharge  from  attendance, 
without  waiting  for  completion  of  return  travel.  The 
charges  for  return  journeys  will  be  made  upon  the  basis 
of  the  actual  charges  allowed  for  travel  to  the  court. 

6.  A  civilian  witness  not  in  Government  employ  will 
receive  5  cents  a  mile  for  going  from  his  place  of  residence 
to  the  place  of  trial  or  hearing  and  5  cents  a  mile  for 
returning,  distances  to  be  calculated  by  the  shortest 
usually  traveled  route.  He  will  also  receive  $1.50  for 
each  day  actually  and  unavoidably  consumed  in  attend- 
ance upon  the  court  under  the  summons.  No  other  items 
will  be  allowed. 

7.  Civilian  witnesses  in  Government  employ  will  receive 
as  follows : 

(a)  Amount  actually  paid  for  cost  of  transportation  or 
travel  fare. 

(&)  Amount  actually  paid  for  cost  of  transfers  to  and 
from  railway  stations,  not  exceeding  50  cents  for  each 
transfer. 

(c)  Amount  actually  x)aid  for  cost  of  one  double  berth 
in  sleeping  cars  or  on  steamers  where  an  extra  charge  is 
made  therefor. 

(d)  The  actual  cost  of  meals  and  rooms  at  a  rate  not 
exceeding  $3  per  day  for  each  day  actually  and  unavoid- 
ably consumed  in  travel  or  in  attendance  upon  the  court. 


ACCOUNT  OF  CIVILIAN  WITNESS.         145 

8.  Travel  must  be  estimated  by  the  shortest  available 
usually  traveled  route;  the  charge  for  cost  of  travel 
(items  a,  h,  c)  by  established  Hues  of  railroad,  stage,  or 
steamer  should  not  exceed  the  usual  rates  iu  like  cases, 
the  time  occupied  to  be  determined  by  the  official  sched- 
ules, reasonable  allowance  being  made  for  customary 
unavoidable  detention. 

9.  The  summons,  or  order  for  attendance,  will  be  pre- 
sumed to  show  iu  all  cases,  by  indorsement  or  otherwise, 
if  transportation  in  kind  or  commutation  of  rations  has 
been  furnished.  Transportation  in  kind  will,  for  any 
distance  covered  thereby,  be  a  bar  to  payment  of  item  a. 
Indorsements  of  transportation  furnished  Avill  be  scru- 
tinized to  ascertain  if  any  part  of  item  c  has  been 
included. 

Commutation  of  rations  will  be  a  bar  to  payment  of 
item  (1. 

Transportation  and  commutation  of  rations  will  be  a 
bar  to  any  payment. 

10.  No  per  diem  allowance  can  be  made  where  the 
attendance  upon  the  court  does  not  require  the  witness 
to  leave  his  station.  (This  applies  to  civilians  in  Gov- 
erimieut  employ.) 

11.  Compensation  to  civilians  in  or  out  of  Government 
employ,  for  attendance  upon  civil  courts,  is  payable  only 
by  the  civil  authorities. 

12.  If  a  witness  is  in  Government  employ  the  judge- 
advocate  will  state  the  fact.  If  it  does  not  appear  in  the 
certificate  or  elsewhere  in  the  papers,  and  is  not  known 
to  the  x^aymaster,  it  will  be  assumed  that  the  witness  is 
not  in  Government  employ. 

13.  Whenever  needed,  judge-advocates  can  procure 
blank  accounts  for  civilian  witnesses  from  any  army 
paymaster  or  from  the  Paymaster-General's  Office.  The 
accounts  may  then  be  made  out  upon  a  witness'  discharge 
from  attendance.  If  no  paymaster  be  present  at  the 
place  where  the  court  sits,  the  accounts,  authenticated  as 
above  directed,  may  be  transmitted  to  any  paymaster  for 
payment,  with  confidence  that  the  witness  will  receive 
his  pay  without  unnecessary  delay. 

4644 7 


146  MANUAL   FOR   COURTS-MARTIAL. 

FORM  FOR  SPECIAL  ORDERS. 

Headquarters  Department  of  — 


Special    Orders  I 
No. S 


18—. 


3.  Recruit ,  General  Service,  U.  S.  Army,  hav- 
ing been  tried  by  a  general  court-martial  convened  at 

,  and  found  guilty  of  fraudulent  enlistment,  in 

violation  of  the  62d  Article  of  War,  was  sentenced  'Ho 
be  dishonorably  discharged  the  service  of  the  United 
States,  forfeiting  all  pay  and  allowances  due  him,  and  to 
be  confined  at  hard  labor  at  such  post  as  the  reviewing 
authority  may  direct,  for  the  period  of  one  (1)  year." 

The  sentence  is  approved  and  will  be  duly  executed. 
The  prisoner  will  be . 

By  command  of  Brig.  Gen. . 

Assistant  Adjutant-General. 


HABEAS  CORPUS  BY  STATE  COURT. 

KETUEN  TO  WRIT. 

Form  1. — Person  held  under  warrant  of  attachment. 

In  re  .     {Name  of  party  held.) — Writ  of  habeas 

corpus — return  of  respondent. 

To  the .1 

The  respondent.  Major , U.  S.  Infantry, 

upon  whom  has  been  served  a  writ  of  habeas  corpus  for 

the  production  of ,  respectfully  makes  return 

and  states  that  he  holds  the  said by  authority 

of  the  United  States,  pursuant  to  a  warrant  of  attach- 

'" Court"  or  "judge,"  as  the  case  may  be. 


HABEAS  CORPUS.  147 

inent  issued  under  section  1202  of  the  Revised  Statutes  of 
the  United  States  by  a  judge-advocate  of  a  lawfully  con- 
vened general  court-martial  and  duly  directed  to  him, 
the  said  respondent,  for  execution;  that  he  is  diligently 
and  in  good  faith  engaged  in  executing  said  warrant  of 
attachment,  and  that  he  respectfully  submits  the  same 
for  the  inspection  of  the  court,  together  with  the  origi- 
nal subpoina  and  proof  of  service  of  the  same,  and  a  cer- 
tified copy  of  the  order  convening  said  general  court- 
martial. 
And  said  respondent  further  respectfully  makes  return 

that  he  has  not  produced  the  body  of  the  said , 

because  he  holds  him  by  authority  of  tiie  United  States, 
as  above  set  forth,  and  that '  is  without  jurisdic- 
tion in  the  premises,  and  he  respectfully  refers  to  the 
decisions  of  the  Supreme  Court  of  the  United  States  in 
Ableman  vs.  Booth,  21  Howard  506,  and  Tarble's  Case,  13 

Wallace,  397,  as  authority  for  his  action,  and  prays 

1  to  dismiss  the  writ. 

Major, U.  S.  Infantry. 

Dated , 

Form  2. — Person  held  as  a  deserter. 

respectfully  makes  return  and  states  that 

he  holds  the  said by  authority  of  the  United 

States,  as  a  deserter  from  the  U.  S.  Army,  under  circum- 
stances as  follows : 

That  the  said was  duly  enlisted  as  a  soldier 

in  the  service  of  the  United  States  at ,  on 

,  189 — ,  for  a  term  of years. 

That  the  said ,  deserted  said  service  at ,  on 

,  189 — ,  and  remained  absent  in  desertion  until 

he  was  axiprehended  at ,  on ,  189 — ,  by 

,  and  was  thereupon  committed  to  the  custody  of 

the  re8i)ondent  as  commanding  officer   of  the  post  of 

1  "This  court"  or  "  your  honor,"  as  the  case  may  be. 


148  MANUAL   FOR  COURTS-MARTIAL. 

That  charges   for   said   desertiou,  a  copy  of  Avhich  is 

annexed,  have  been  preferred  against  the  said , 

and  that  he  will  be  brought  to  trial  thereon  as  soon  as 
practicable  before  a  court-martial  to  be  convened  by  the 

commanding  general   of  the  department   of . 

{or)  convened  bj-^  Special  Orders  No.  ,  dated  Head- 
quarters Department  of ,    189 — ,    a   copy  of  which 

order  is  hereto  annexed. 

And  the  said  respondent  further  makes  return,  etc. 

{Conclude  ivith  last  paragraph  of  form  1.) 


HABEAS  CORPUS  BY  UNITED   STATES  COURT. 

RETURN  TO  AVRIT. 

{Make  return  as  in  case  of  ivrit  hi/  a  State  court,  except  as  to 
last  paragraph,  for  which  suhstitute  as  follows  :) 

In  obedience,  however,  to  the  said  writ  of  habeas  corpus 
the  respondent  herewith  produces  before  the  court  the 

body  of  the  said ,  but  for  the  reasons  set  forth 

prays  this  honorable  court  to  dismiss  the  said  writ. 

Major U.  S.  Infantry. 

Dated , , 

,  189—. 


INDEX 


Abatement  of  Punishment :  Page. 

For  good  conduct  in  confinement 71 

Absence: 

Of  member  from  meeting  of  court 22, 121 

See  Department  Commander. 

Absence  Without  Leave : 

Etieoi  of  conviction  of,  on  reward  for  apprehension 52 

Finding  of,  under  charge  of  desertion 47 

From  camp,  1  mile 90 

From  duty  a.s  company  or  hospital  cook 58 

From  fatigue^  extra  or  special  duty 58 

From  parade  etc.,  forms  for  charges 112 

From  parade  etc. .  limit  of  punishment 5G 

From  parade   etc.  otieuse  of 90 

From  troop,  etc  ,  torm  for  charge 112 

From  troop,  etc  ,  limit  ot  punishment 55 

From  troop,  etc.  offense  of 90 

Abuse  of  Authority : 

By  noncommissioned  officer,  limit  of  punishment 58 

Accounts : 

Of  witne.ss,  form  for 142 

Of  witness,  rules  governing 143 

Of  witnesrt.  to  deposition 36 

Accoutrements : 

Accountability  for 85 

Selling,  losing,  etc,  form  for  charge - Ill 

Selling,  losing,  etc.,  limits  ot  punishment 54,  55 

Selling  losing,  etc.,  offense  of 86 

Accused: 

Arraignment  of 30, 123 

Challenge  by   how  allowable  26 

Challenge  by   how  recorded 121 

Character  of  when  attackable    45 

Entitled  to  coun.sel  before  general  court 25 

149 


150  INDEX. 

Accused— Continued.  Page. 

Entitled  to  have  witnesses  summoned 32 

Judge  advocate,  liow  fat  counsel 23 

Stands  mute 31 

Status  of,  as  witness 40 

To  be  advised  of  his  rights 23 

Uniform  of,  before  court 20 

Will  not  appear  in  irons 21 

Accuser: 

Can  not  convene  general  court 11 

Can  not  act  as  summary  court 75 

Challenge  of  member  on  ground  ot  being 27 

Should  not  act  as  judge-advocate 27 

Acquittal: 

Efiect  of,  on  reward  for  apprehension 52 

Finding  in  case  of  virtual 48 

Form  for  recording 128 

Acting  Assistant  Surgeon : 

Ineligible  as  member  of  court 9 

Action  on  Proceedings.     See  Proceedings. 
Additional  Cliarges: 

Can  not  be  introduced  after  arraignment,  etc 20 

Adjournment: 

Daily,  signed  by  judge-advocate 24 

Final,  signed  by  president  and  judge-adA'ocate 24 

Advising  Desertion: 

Offense  of 92 

Affidavit: 

Admissibility  of,  as  evidence 46 

Alarms: 

False  offense  of  occasioning 91 

Ammunition: 

Offense  of  purchasing  from  soldier,  etc 96 

Offense  of  wasting,  selling,  etc 86 

Appeal: 

From  regimental  to  general  court 89 

Appointing  AuHiority.     See  Convening  Authority. 

Arms: 

Accountability  for 85 

Offense  of  casting  away 91 

Offense  of  making  false  return  of 85 

Offense  ot  selling,  losing,  etc 86 

Offense  of  selling,  losing,  etc.,  limits  of  punishment 54, 55 


INDEX.  151 

Arraignment:  Page. 

Accused  and  judge-advocate^tand 30 

Accused  not  to  be  in  irons  at 21 

Accused  stands  mute  at,  action  by  court 31 

A  dditional  charges  not  introduced  after 20 

Form  for  recording 123 

Procedure  for 30 

Arrest : 

Applications  of  officers  in 5 

Breach  of,  by  officers 97 

Enlisted  men  in,  how  designated 6 

General  provisions  regarding 7 

Of  deserters,  reward  for 52 

Of  officers 4,97 

Of  soldiers 6 

Protracted,  a  ground  formitigatiou 69 

Arson: 

Otfense  of,  in  time  of  war 94 

Articles  of  War: 

Armies  of  United  States  governed  by 83 

Officers  shall  subscribe 83 

Read  once  in  six  months  to  troops 108 

Read  to  recruits 83 

Assault  irith  Intent  to  Kill: 

Form  for  charge 115 

Limit  of  punishment 57 

Assembling  of  Court: 

Procedure  on 20 

Attachment  of  Witness.    See  Witness  and  Warrant  of  Attach- 
ment. 

Attendance  of  Witness.    See  Witness. 
Authentication  of  Proceedings.     See  Proceedings. 
Authority : 

Abuse  of,  by  noncommissioned  officer 58 

Autrefois  Acquit: 

Plea  of 31 

Ball  and  Chain : 

As  punishment 50 

Punishment  by,  in  extreme  cases  only 51 

Report  of  use  to  department  commander 70 

Branding  of  Soldiers: 

Forbidden 102 

Breach  of  Arrest : 

By  officer 97 


152  INDEX. 

Bread  and  Water  Diet :  Page. 

Confinement  on,  as  punishment 50 

Bribes : 

Officer  taking 84 

Burglary : 

Oflense  of,  in  time  of  war 94 

Under  62cl  Article,  form  for  charge 116 

Under  62d  Article,  limit  of  punishment 57 

Cadets.    See  Military  Academy. 

tamp : 

Introducing  liquor  into,  limit  of  punishment 58 

Lying  out  of,  without  leave 90 

Ketaiuers  of,  jurisdiction  over 13 

Soldiers  one  mile  from,  without  leave 90 

Violence  to  i)ersons  hringing  provisions  to 93 

Candidate  for  Promotion : 

Charges  against 18 

Punishment  of 50 

Triahle  by  general  court  only 13 

Capital  Crime : 

Desertion  in  time  of  peace  not  a 37 

Meaning  of 37 

Captured  Stores : 

Disposition  of 85 

Cashiering : 

Meaning  of 85 

Certificates: 

Penalty  for  signing  false 86 

Challenge  ( Of  member  of  court)  : 

Court  determines  validity  of 26 

Grounds  for 27 

lu  absence  of,  member  how  excused 27 

Judge-advocate  not  challengeable 27 

Record  in  case  of 121 

Summary  and  field  officer's  courts  not  subject  i  o 26 

Challenge  (To  fight  duel): 

Duty  to  refuse 88 

Sending,  accepting,  etc 88 

Upbraiding  for  refusing 88 

Chaplains: 

Not  detailed  as  members  of  courts 9 

Character  of  Accused : 

When  attackable 45 


INDEX.  153 

Charges:  Page. 

Accompanied  by  what 19 

Act  charged  under  two  or  more  forms 17 

Additional 20 

Against  deserter  from  Navy  or  Marine  Corps 18 

Consideration  of,  by  post  commander 18 

Correction  of,  by  judge- advocate 23 

Delay  in  trial  by  summary  court  on 76 

Forms  for Ill 

Instructions  for  drawing 15 

Investigation  of 18 

Joint,  when 16 

Trisoners  without  written,  when  released 7 

Req  uisites  of 15 

Service  of,  upon  officer  arrested 5 

Specifications,  how  drawn 17 

Specifications,  not  in  alternative 17 

Striking  out,  withdrawing,  etc 19 

To  whom  submitted 18 

"When  and  by  whom  submitted 7 

Civil  Court: 

Can  not  review  proceedings  of  military 11 

Military,  ordinarily,  gives  precedence  to 12 

Previous  convictions  by,  inadmissible 49 

Civil  Crime: 

Act  as  being  both  military  offense  and 12, 16 

Civil  Magistrate : 

Delivery  of  accused  officer  or  soldier  to 94 

Clemency : 

Certain  applications  for 67 

Clothing : 

Form  for  charge  for  selling Ill 

Limit  of  punishment  for  selling 54 

Limit  of  punishment  for  losing  or  spoiling 55 

Offense  of  selling,  losing,  etc 86 

Closed  Session : 

Judge-advocate  excluded 24 

Company  Commander: 

Arrest  or  confinement  of  soldiers  reported  to 7 

Copy  of  summary  court  record  furnished  to 80 

Commanding  Officer: 

Disrespect  to,  limit  of  punishment..: 55 

Disrespect  to,  ofiense  of 87 

Instructions  to,  regarding  summary  courts 79 

May  authorize  departure  of  certain  witnesses 37 

4644 7* 


154  INDEX. 

Commandiii!?  Officer— Continiied.  Page. 

Must  investigate  cliarges 18 

Power  to  order  court  of  inquiry 105 

llefers  or  forwards  charges 18 

Keport  of  prisoners  to 7 

Command : 

Suspension  from,  as  punishment 50 

When  difi'erent  corps  Join 106 

Commands : 

Ofticers  to  keep  good  order  in 93 

Commutation  of  Punishment: 

Power  of  reviewing  authority 68 

Company  Coolc : 

Limit  of  punishment  for  absence  from  duty  as 58 

Limit  of  punishment  for  drunkenness  on  duty  as 56 

Company  Fund : 

Forfeiture  in  favor  of,  illegal 51 

Competency  of  Witness.    See  Witiiess. 
Composition  of  (Courts-Martial.     See  Courts-Martial. 
Conduct  to  the  Prejudice,  etc. : 

Forms  for  charges 1 14 

Instructions  regarding  cha'  ges 15 

Limits  of  punishment 57 

Conduct  Unbecoming,  etc. : 

Instructions  regarding  charges  of 15 

Confinement  Before  Trial: 

Enlisted  men  in,  how  designated 6 

General  provisions  regarding 7 

Long,  a  ground  for  mitigation 69 

Of  officers 5 

Of  soldiers 6 

Eeport  of,  to  soldier's  company  commander 7 

Confinement  After  Trial : 

Abatement  allowed 71 

Enlisted  men  in   how  designated 69 

Forms  for  sentence  to I37 

General  prisoners  examined  when  released 72 

On  bread  and  water  diet 50 

Personal  effects  of  escaped  prisoners 71 

Prisoners  forwarded  to  place  of 70 

Prisoners  put  in  iron--?,  report  made 70 

Second  sentence  to,  begins  when 71 

Sentence  to,  begins  when : 71 


INDEX.  166 

Confinement  After  Trial— Continued.  Page. 

Separation  of  ]nisoneis  in 70 

Solitary,  duration  of 62 

Constitution  of  Courts-Martial.    See  Courts-Martial. 

Contempt : 

Courts-martial  may  puuisli  for 101 

Continuance.    See  Postponement 

CoiiTcning  Authority: 

Control  of,  over  court 11 

Decision  of,  as  to  number  of  members 10 

Eflect  of  absence  on  appointing  power 11 

Of  field  officer's  court 80 

Of  garrison  court 81 

Of  general  court 10 

Of  regimental  court 82 

Of  summary  court 75 

Prosecutor  can  not  convene  general  courts 11 

Report  to  when  court  is  below  minimum 10 

The  President  as 10 

The  Superintendent,  U.  S.  Military  Academy,  as 11 

Convening  Order: 

For  field  ofticer's  court 133 

For  garrison  court 134 

For  general  court 119 

For  regimental  court 136 

None  required  for  summary  court 75 

Convictions.     See  Previous  Convictions. 

Correction  of  Proceedings.     See  Jtevision  of  Record. 

Correspondence: 

"With  the  J  udge- Advocate-General 73 

With  the  enemy 91 

Counsel  for  Accused : 

Arguments  of,  oral  or  written 25 

By  whom  detailed 25 

Duties  of 25 

Introduction  of,  before  court 121 

Judge-advocate    how  far 22 

Questions  of  oral  or  written 25 

Courts-Martial : 

All  troops  subject  to  trial  by 12 

Assembling  of 20 

Authority  over  charges 19 

Can  not  excuse  member 27 

Can  not  otAgx  nolle  prosequi 19 


156  INDEX. 

Courts-Martial— Continued.  Page. 

Civil  courts  can  not  review  proceedings  of 11 

Classification  of 9 

Composition  of 9 

Control  of  convening  authority  over 1] 

Hours  of  session 102 

Inferior 10 

Jurisdiction  of,  as  affected  by  act  of  accused 13 

Jurisdiction  of,  over  acts  both  civil  crimes  and  military 

oifenses 12,16 

Jurisdiction  of,  derived  from  acts  of  Congress 11 

Jurisdiction  of,  exclusive  over  military  offenses 12 

Jurisdiction  of,  how  extended  in  time  of  war 13 

Jurisdictioji  of,  not  affected  by  territoriality. .  - 12 

Jurisdiction  of,  over  offenses 13 

Jurisdiction  of,  over  persons 12 

Jurisdiction  of,  statute  of  limitation  as  affecting 32 

Jurisdiction  of,  when  ended 12 

May  punish  for  contempt 101 

Object  of,  as  a  military  tribunal 4 

Organization  of 20 

Field  Officers'  Courtg— 

Composition,  etc., of '80 

Disposition  of  proceedings  of 74 

Form  for  order  and  record 133 

Not  challengeable 20 

Power  of  reviewing  authority 81 

Garrison  Courts-Martial — 

Appointed  in  what  commands 81 

Appointed  when 81 

Cases  necessarily  referred  to 81 

Composition,  etc.,  of 81 

Disposition  of  proceedings  of 74 

Form  for  order  and  record 134 

Limit  of  punishing  power 82 

General  Courts-Martial — 

Appeal  from  regimental  court  to 89 

Charged  with  knowledge  of  end  of  enlistment 51 

Closed  session  of 24 

Composition  of 9 

Constituted  by  whom 10 

Disposition  of  proceedings  of 73 

Form  for  order  and  record 119 

Jurisdiction  of 13 

Procedure  of 21 

Eecord  of  proceedings 65 

Record  of,  copy  furnished  accused 73 

Revision  of  record 66 


INDEX.  167 

Conrts-Martial— Continued.  Page. 

Regimental  Courts-Martial — 

Composition,  etc.,  of 82 

Disposition  of  proceedings  of 74 

Form  for  order  and  record 136 

Under  30th  Article  of  War 89 

Summary  Courts — 

Accuser  can  not  act  as 75 

Act  establishing 109 

Clerk  for 77 

Composition,  etc.,  of 75 

Copies  of  record,  furnished  company  commanders 80 

Delay  in  trial  by 76 

Discretion  as  to  trial  by 76 

General  instructions  regarding 79 

Hours  of  session 77 

Jurisdiction  of 75 

May  be  held  on  Sunday  in  emergency 79 

Monthly  report  of  cases  tried,  fonu  for 132 

Names  of  officers  who  act  as,  reported 80 

Not  challengeable 26 

Power  of 77 

Previous  convictions  considered  by 78 

Procedure  of 77 

Punishing  power 78 

Record  book,  form  for 131 

Report  of  cases  tried  by,  to  be  made  monthly 74 

Reviewing  authority  of 79 

Courts  of  Inquiry : 

Authentication  of  proceedings  of 106 

How  ordered 105 

Members  of 106 

Oath  of  members  and  recorder 106 

Object  of,  as  a  military  tribunal 4 

Opinion  of,  when  given 1 06 

Record  of,  as  evidence 46,106 

"Witnesses  before 106 

Cowardice : 

Offense  of 91 

Sentence  for,  how  published 103 

Credibility  of  Witness.    See  Witness. 

Crime : 

Act  as  being  both  military  offense  and  civil 12, 16 

Capital,  desertion  in  time  of  peace  not  a 37 

Capital,  ofiender  delivered  to  civil  magistrate 94 

During  rebellion,  etc 94 


158  INDEX. 

Crime— Continued.  Pa"-e. 

Officers  accused  of,  subject  to  arrest 97 

Of  fraud  against  the  United  States 94 

Soldiers  accused  of 97 

To  the  prejudice,  etc 96 

Criminals : 

Enlistment  of,  prohibited 84 

Customs  of  War: 

As  affecting  punishment 61 

As  part  of  unwritten  military  law 4 

Days: 

Meaning  of  word  in  sentence 71 

Death,  Sentence  of: 

Confirmation  of 104 

Suspension  of 68, 105 

Vote  upon 63 

Deceased  Soldiers : 

Disposition  of  effects  of 107 

Defects  in  Prooeediiigrs.    See  Revision  of  Record. 

Defense : 

How  far  assisted  b.y  judge  advocate 24 

Delay : 

In  trial  by  summary  court 76 

When  and  by  whom  granted 29 

Department  Commander: 

As  accuser  or  prosecutor 11 

Authorized  to  convene  courts 11 

Authorized  to  review  proceedings 67 

Can  not  delegate  his  function  as  reviewing  authority 67 

Charges  forwarded  to 18 

Effect  of  absence  of,  on  appointing  power 11 

May  permit  trial  of  sergeants  by  inferior  courts 14 

Report  of  irons  on  prisoner  to 70 

Deposition: 

Duty  of  officer  ordered  to  obtain 36 

Form  for 141 

May  be  taken  before  court  assembles 36 

Oath  to,  by  whom  administered 36 

Pay  accounts  of  witness  giving 36 

Procedure  to  obtain 35 

Submission  to  court 36 

W hen  admissible 35, 141 

When  not  admissible 37 

Deprivation  of  Privileges : 

Of  ' '  candidate  for  promotion  " 50 


INDEX.  169 

Deserter:  Page. 

Api)relieii(led  or  surrenders,  action  taken ^ 53 

Enlistraont  of,  prohibited 84 

.From  Navy  or  Marine  Corps 18 

Harboring,  offense  of 92 

Surgeon's  report  to  accompany  charges  against 19 

To  serve  full  term 92 

"Who  is  apprehended,  limit  of  punishment 54 

Who  surrenders,  limit  of  punishment 53 

Deserter's  Release: 

Meaning  of 53 

Desertion : 

After  tendering  resignation 92 

By  enlistment  in  another  regiment 92 

Evidence  of,  after  plea  of  guilty 31 

Form  for  charge  of J 14 

In  time  of  peace  not  a  capital  offense 37 

Limits  of  punishment 53 

Offense  of 91 

Offense  of  advising  or  persuading 92 

Previous  convictions  of 54 

Statute  of  limitation  for 32, 103 

Discharge,  Dishonorable: 

Form  for  sentence  of 137 

Of  an  officer  for  cowardice  or  fraud 103 

Of  post  noncommissioned  staff  and  hospital  steward 63 

On  account  of  previous  convictions (iO 

On  account  of  conviction  of  two  or  more  offenses 61 

Postponement  of  date  fixed  by  sentence 69 

Discharge  from  Service : 

llow  made 84 

Dismissal: 

By  court-martial,  appointed  by  dlYlsion  or  brigade  com- 
mander   104 

For  cowardice,  etc.,  where  published 103 

In  time  of  peace,  sentence  confirmed 104 

Of  officers 103 

Suspension  of  sentence  of 68. 105 

Disobedience  of  Orders: 

Involving  defiance  of  noncommissioned  officer 58 

4)f  an  officer,  form  for  charge 112 

Of  an  officer,  offen.*ie  of 87 

Of  an  officer,  etc.,  qiielling  fray,  limit  of  punishment 55 

Of  an  ofiicer,  etc.,  quelling  fray,  offense  of 88 

Of  a  noncommissioned  officer,  form  for  charge 115 


160  INDEX. 

Disobedience  of  Orders— Continued.  Page. 

Of  a  noncommissioned  ofKcer,  olFense  under  G2d  Article 112 

Of  a  sentinel,  limit  of  punishment 59 

Simple  neglect  of  standing  order 112 

Disorderly  Conduct  in  (Quarters: 

Limit  of  punishment 58 

Disorders  and  Neglects: 

Offenses  under  62d  Article 96 

Disposition  of  Records: 

Of  general  courts 73 

Of  inferior  courts 74 

Disrespect: 

To  commanding  officer,  limit  of  punishment 55 

To  commanding  officer,  otfense  of 87 

To  sentinel,  limit  of  punishment 59 

Regarding  President,  etc.,  ott'ense  of 87 

Divine  Service: 

Irreverent  behavior  at 92 

Officers,  etc.,  recommended  to  attend 92 

Document: 

As  evidence 47 

Double  Amenability  : 

In  case  of  disorder  near  post 58 

To  civil  and  military  jurisdictions 12,16 

Drunkenness : 

At  guard  mounting 16 

At  post  or  in  quarters,  limit  of  punishment 58 

Not  on  duty,  offense  under  62d  Article 16 

On  duty,  offense  under  38th  Article 16,  90 

On  duty,  form  for  charge 113 

On  duty,  limits  of  punishment 56 

Drunlienness  and  Disorderly  Conduct: 

Form  for  charge 115 

Near  post  causing  conviction  by  civil  avithorities 58 

Duel: 

Challenge  to  fight 88 

Sending,  accepting  cliallenge,  etc 88 

Upbraiding  for  refusing  challenge 88 

Duty: 

Conniving  at  hiring «     90 

Hiring 90 

Effects : 

Of  deceased  officers  and  soldiers 107 

Of  escaped  prisoners 71 


INDEX.  161 

Embezzlement:  Page. 

Offense  Tinder  62d  Article,  limit  of  punishment 57 

Of  United  States  property 57,94 

Specifications  for,  to  state  value  of  property 57 

Enemy : 

Correspondence  with 91 

Misbehavior  before 91 

Relieving,  harboring,  etc 91 

Trading  with 108,109 

Enlistment: 

Fraudulent,  definition  of 12 

Fraudulent,  forms  for  charges 114,117 

Fraudulent,  limits  of  punishment 58 

Fraudulent,  offense  under  62d  Article 97 

Fraudulent,  triable  by  general  court  only 14 

General  court  charged  with  knowledge  of  expiration  of 51 

Oath  of 83 

Of  certain  classes  prohibited 84 

Unlawful,  i>enalty  for  making 84 

Escape  of  Prisoner: 

Disposal  of  effects  of  prisoner 71 

Effect  on  j  urisdiction  of  court 13 

Form  for  charge  for  suffering 115 

Limit  for  suffering 59 

Evidence : 

Affidavits,  ex  parte,  not  admissible  as 46 

Common  law  rules  of  ordinarily  followed 41, 46 

Documentary 47 

Hearsay  and  original 46 

Proceedings  of  court  of  inquiry  as 46,106 

Transcripts  from  records  as 47 

Examination  of  Witness.    See  Witness. 

Experts: 

Employment  and  pay  of 38 

Testimony  of 43 

Exposure  of  Person : 

Limit  of  punishment. 59 

False  Alarms: 

Penalty  for  creating 91 

False  Certificate: 

Penalty  for  signing 86 

False  Muster: 

Penalty  for  making 84,86 

Penalty  for  signing,  etc.,  roll  containing 86 

False  Report: 

By  noncommissioned  officer,  limit  of  punishment 59 


162  INDEX. 

False  Return :  Page. 

Penalty  for  making 85 

False  Swearing : 

Distinguished  from  perj  ury 116 

Limit  of  punisliment 57 

Fees  of  Witness.     See  Witness. 

Field  Officer's  Court.     See  Courts-Martial. 

Finding: 

In  case  of  virtual  acquittal 48 

Of  guilty  of  lesser  kindred  offense 47 

Of  guiltj^  of  part  of  specification 47 

Of  guilty  under  general  instead  of  specific  article 48 

Reviewing  authority  can  not  change 48 

Fine: 

As  a  punishment 50 

See  Forfeiture  of  Fay. 

Flogging : 

Prohibited 102 

Forcing  a  Safeguard : 

Offense  of 94 

Forfeiture  of  Pay : 

As  a  punishment 50 

Can  be  made  onlj^  in  favor  of  United  States 51 

For  irreverent  behavior 93 

For  profanity 93 

Forms  for  sentences  to 137 

Of  amount  paid  for  apprehension 52 

Eemission  of  sentence 69 

Forgery : 

Under  60th  Article,  limit  of  punishment 57 

Under  G2d  Article,  limit  of  punishment 57 

Former  Trial : 

Plea  of 31 

Forms: 

For  account  of  civilian  witness 142 

For  charges Ill 

For  interrogatories  and  deposition 141 

For  monthly  report  of  summary  court  cases 132 

For  record  book,  for  summary  court 131 

For  record  of  field  officer's  court 133 

For  record  of  garrison  court 134 

For  record  of  general  court 1 19 

For  record  of  regimental  court 136 

For  return  to  habeas  corpus  of  State  court 146 


INDEX.  163 

Forms— Continuea.  Page. 

For  return  to  habeas  corpus  of  Fnited  States  court 148 

For  revision  of  record,  general  court 130 

For  sentences 137 

For  special  order  publishing  proceedings 146 

For  statement  of  service 118 

For  subpiena  duces  tecum 139 

For  subpoena  for  civilian  witness 138 

For  summons  for  military  witness 138 

For  surgeon':;  report  on  alleged  deserter 118 

For  warrant  of  attachment 140 

Fort  Leavenworth,  Kans. : 

Penitentiary  for  general  prisoners 68 

Frand : 

Offenses  of,  under  60th  Article 95 

Officer  dismissed  for 103 

Fraudulent  Enlistment.    See  EnlUtment. 

Frays : 

Power  to  quell 88 

Refusing  to  obey  officer,  etc.,  quelling,  limit  of  punishment .  55 

Gambling: 

Encouragement  of,  by  noncom.  officer,  limit  of  punishment. .  59 

(•arrison  Court-Martial.    See  Courts-Martial. 

(•arrisou  Prisoners : 

Who  designated  as 69 

General  and  Special  Orders : 

As  part  of  written  military  law 4 

Publishing  proceedings 69 

General  Court-Martial.    See  Courts-Martial. 

General  OflBcers : 

Power  of,  to  convene  courts 11 

Sentences  regarding 104 

General  Prisoners : 

Examined  when  released 72 

M  ho  designated  as 69 

Good  Conduct  in  Confinement: 

Abatement  for 71 

Good  Order : 

Officers  to  keep,  in  their  commands 93 

Grievances: 

Of  officers 89 

Of  soldiers 89 

liedresafor 89 


164  INDEX. 

Guard :  Page. 

Drunkenness  on,  form  for  charge 113 

Drunkenness  on,  limit  of  punishment 56 

Drunkenness  on,  offense  of 90 

For  prisoners  conveyed  to  place  of  confinement 70 

Member  of,  drinking  with  prisoner,  limit  of  punishment. . .  95 

Prisoners  delivered  to,  charges  against 7 

Prisoners  under  cliarge  of,  when  released. 7 

Quitting,  form  for  charge 113 

Quitting,  limit  of  punishment 57 

Quitting,  offense  of 91 

Guard  Duty : 

As  a  punishment,  forbidden 51 

Guard  Mounting: 

Drunk  at,  offense  under  62d  Article 16 

Habeas  Corpus : 

Forms  for  return  to  Avrit  of 146 

Officer  served  with,  action  required 34 

Writ  issued  by  State  court 72 

"Writ  issued  by  United  States  court 73 

Harboring: 

Deserter 92 

Enemy 91 

Hard  Labor: 

As  a  punishment 50 

Forms  for  sentences  to 137 

Power  of  inferior  court  to  award 100 

Hiring  Duty.     See  Duty. 

Horse : 

Limit  of  punishment  for  losing  or  spoiling 55 

Limit  of  punishment  for  selling 54 

Oflense  of  selling,  etc 86 

Hospital  Cook : 

Limit  of  punishment  for  absence  from  duty  as 58 

Hospital  Steward  (Noncommissioned  officer  above  ranJc  of  cor- 
poral) : 

Arrest  of 6 

Confinement  of 6 

Jurisdiction  over 14 

May  be  discharged,  bxit  not  reduced 63 

Punishment  of 50 

Hours  of  Session: 

Article  prescribing 102 

Not  to  interfere  with  routine  duties 20 

Of  summary  court 77 


INDEX.  165 

Hoars  of  Session-Continued.  Page. 

Ketordof 120 

AVithout  regard  to  hours 20 

Indecent  Exposure : 

Limit  of  i)uiu8hment 59 

Inferior  Courts-Martial : 

Courts  so  designated 10 

Disposition  of  records  of 74 

Instructions  regarding 10 

Punishing  power 100 

Inquiry,  Courts  of.    See  Courts  of  Inquiry. 

Insane  or  Intoxicated  Person: 

Enlistmeut  of 84 

Insubordination : 

Toward  nonconi.  officer,  limit  of  punishment 58 

Intent: 

Proof  of,  general  rulefor 46 

Interpreter: 

Employed  by  order  of  court 20 

Oath  of 29 

Pay  of 20 

Eecord  relating  to 122 

Interrogatories  and  Deposition.    See  Deposition. 

Introducing  Liquor  into  Camp,  etc. : 

Limitof  punishment 58 

Irons  on  Prisoner: 

As  a  punishment 50 

Kemoved  oq  arraignment 21 

Reported  to  department  commander 70 

Irreverent  BehaTior : 

At  divine  service 92 

Joint  Charges : 

When  allowed 16 

Judge-Adrocate-Oeneral : 

Applications  to,  for  copies  of  records 73 

Correspondence  with 73 

Proceedings  in  certain  cases  forwarded  direct  to 73 

Eevises  and  preserves  records  of  general  courts 73 

Judge-Advocate  of  Court-Martial : 

Appointed  by  whom 99 

Authorized  to  administer  certain  oaths 29 

Correction  of  charges  by 23 

Duties  of 22,121 


166  INDEX. 

Judge-Advocate  of  Court-JIartial— Continued.  Page. 

New  judge-advocate,  record  regarding 65 

Not  challengeable 27 

Oath  of 28 

Subpoenas  by,  how  sent 32 

Subscribes  daily  record,  etc 24 

Warrant  of  attachment  issued  by 33 

"Withdraws  when  court  is  closed 24 

"W  itnesaea  summoned  by 32 

Judge-Advocate  of  Department: 

Authorized  to  administer  certain  oaths 29 

Custodian  of  records  of  inferior  courts 74 

Jurisdiction  of  Courts-Martial.     See  Courts-Martial. 

Larceny : 

By  soldier  from  civilian 16 

Forms  for  charges  of 114, 116 

Offense  of,  in  time  of  war 94 

Offense  under  62d  Article,  limits  of  punishment 57 

Specifications  for,  to  state  value  of  property 57 

Law  of  Hostile  Occupation : 

Definition  of 3 

Laws  of  tlie  Land: 

Municipal  ordinances,  part  of 94 

Leading  Questions: 

Court  decides  as  to  admission  of 42 

Definition  of 42 

On  cross-examination 43 

On  direct  examination 42 

Leaving  Post: 

Form  for  charge 113 

Offense  of 90 

Lewd  Exposure : 

Limit  of  punishment 59 

Limitation,  Statute  of: 

Advantage  of,  how  taken 32 

Effect  of,  on  jurisdiction 32 

Limit  of  Puuisliment.     See  Maximum  Limit  of  Punishment. 
Line  Officer: 

As  summary  court 75 

On  regimental  or  post  staff  duty 75 

Liquor : 

Introducing  into  camp,  etc.,  limit  of  punishment 58 

Log: 

Punishment  by  carrying  heavy,  prohibited 51 


INDEX.  167 

Losing  or  Spoiling :                                                                           Page. 
Accoutrements  or  clotbing,  through  neglect,  limit  of  pun- 
ishment    55 

Accoutrements  or  clothing  through  neglect,  offense  of 86 

Horse  or  arms,  through  neglect,  limit  of  punishment 55 

Horse  or  arms,  through  neglect,  offense  of 86 

Loss  of  Rank : 

As  a  punishment 50 

Lying  out  of  (Quarters: 

Limit  of  punishment 55 

Offense  of 90 

Manslaughter: 

Offense  of,  in  time  of  war 94 

Under  62d  Article,  limit  of  punishment 57 

March : 

Different  corps,  etc.,  on  the 106 

Order  of 8 

Marine  Corps: 

Deserter  from,  instructions  regarding 18 

Officers  of,  as  members  of  courts 9 

Marking: 

As  a  punishment,  forbidden 102 

Martial  Lan: 

As  a  domestic  fact,  definition  of 3 

As  apjilied  to  the  Armj%  definition  of 3 

Maximum  Limit  of  Punishment: 

By  "whom  prescribed 53 

Effect  of  previous  convictions  on 59 

For  desertion 53 

For  offenses  in  general 54 

Offenses  not  mentioned 61 

Of  noncommissioned  oflicer 60 

Of  soldier  convicted  of  several  ofl'enses 61 

Mayhem : 

Offense  of  iu  time  of  war 94 

Medical  Officer:  ^ 

Arrest  of 5 

Eeport  of,  in  case  of  deserter 19 

Keport  of,  in  case  of  general  prisoner 72 

Members  of  Courts*Martial : 

Absent,  communicate  cause  to  judge-advocate 22 

Assembling  of 20 

Behavior  of 21 

Court  can  not  excuse,  from  sitting 27 

Duty  of  judge  advocate  to  ascertain  cause  ol  absence  of . . . .  121 


168  INDEX. 

Members  of  Courts-Marlisil— Continued.  Page. 

Liable  for  other  tluty 22 

Named  in  order  of  rank 21 

New  member 05 

Oath  of 27 

Questionsby,  how  recorded 124 

Quorum  for  general  court 10 

Seating  of 21 

Uniform  of 20 

Votes  of,  how  given 22 

"Who  are  eligible  as 9 

Who  believe  themselves  disqualitied 27 

Member  of  Guard: 

Drinking  liquor  with  prisoner,  limit  of  punishment 59 

Military  Academy : 

Cadets  not  triable  by  inferior  courts 13 

Professors,  not  eligible  as  members  of  courts 9 

Superintendent,  may  convene  courts  for  cadets 11 

Military  Commission: 

Object  of,  as  military  tribunal 4 

Military  Discipline: 

Conduct  to  prejudice  of,  lorms  for  charges 114 

Conduct  to  prejiulice  of,  how  charged 15 

Conduct  to  prejudice  of,  limits  of  punishment 57 

Crimes,  disorders,  and  neglects  to  the  prejudice  of 96 

Military  Government : 

Definition  of 3 

Military  Jurisdiction : 

How  subdivided 3 

Source  of • 3 

Military  Law : 

Definition  of 3 

Sources  of 4 

Military  Tribunals: 

Classification  of 4 

Militia: 

Not  triable  by  oflicers  of  Regular  Army 9 

Officers  as  members  of  courts 9 

Officers  in  United  States  service,  rank  of 107 

Minimum: 

Report  if  court  is  below 10 

Minors: 

Offense  of  enlisting,  -without  consent  of  parents 84 

Misbeliavior  Before  Enemy: 

Offense  of 91 


INDEX.                                  .  169 

Misconduct  in  Time  of  War:  Page. 

Abaudoning  post,  etc 91 

Casting  away  arms,  etc 91 

Changing  parole  or  watchword 91 

Correspondence  with  enemy 91 

Cowardice 91 

Disclosing  parole  or  watchword,  etc 91 

False  alarms 91 

Forcing  safeguard 94 

Intelligence  to  (memy 91 

Misbehavior  before  enemy 91 

Pillage 91 

Quitting  color 91 

Kelieving  or  harboring  enemy 91 

Various  crimes 94 

Mitigation  of  Sentence: 

Of  field  officer's  court  unauthorized 81 

Of  general  court 67 

Of  prisoner  long  confined  before  trial 69 

Of  summary  court 79 

Motion  to  Strilie  Out: 

Action  of  court  in  cjvse  of 19 

Municipal  Ordinances: 

Part  of  "laws  of  the  land" 94 

3Iurder: 

Ottense  of,  in  time  of  war 94 

Cluster,  False : 

Ottense  of  making 84, 86 

Ott"ense  of  signing,  etc.,  roll  containing 86 

Mustering : 

Persons  not  soldiers  as  soldiers 84 

Keceiving  money,  etc.,  for 84 

Mutiny: 

Beginning,  exciting,  etc 87 

Compelling  commander  to  surrender 91 

Failing  to  report  and  suppress 87 

Navy: 

Deserter  from,  instructions  regarding *  18 

Xeglect  of  Duty : 

By  sentinel,  limit  of  punishment 59 

Causing  damage  to  public  property ._.  85 

Form  for  charge 114 

In  failing  to  care  for  captured  property 85 

In  failing  to  surrender  criminals 94 

To  the  prejudice  of  good  order,  etc 96 

4644 8 


170  INDEX. 

Xe>v  Member:  Page, 

liccord  regarding 65 

\oisy  or  Disorderly  Conduct  in  Quarters: 

Limit  of  puiiishmeut 58 

A'olle  Prosequi: 

Court  can  not  order 15) 

Judge-advocate  can  not  enter 23 

Xoneominissioncd  Officer: 

Abuse  of  authority  by,  limit  of  punishment 58 

Arrest  by,  under  24th  Article 88 

Arrest  of 6 

Confinement  of G 

Disobedience  of  orders  of,  charged  under  62d  Article 112 

Disobedience  of  orders  of,  form  for  charge ]  15 

Disobedience  of  orderst  of,  limit  of  punishment 58 

Encouraging  gambling,  limit  of  punishment 59 

Insubordination  to,  limit  of  punishment 58 

Jurisdiction  over,  by  general  court 14 

Jurisdiction  over,  by  inferior  court 14 

Limit  of  punishment  of GO 

Making  false  report,  limit  of  punishment 59 

Punishments  for 50 

Ileduction  of,  by  summary  court 78 

lleduction  of,  post  noncommissioned  staff,  etc G3 

Using  threatening  or  insulting  language  to 58 

Using  Aiolence  to,  etc.,  Avhen  quelling  quarrel 55 

Oaths: 

Court  must  be  sworn  at  each  trial 27 

For  purposes  of  military  administration 29 

Of  enlistment 83 

Of  members,  judge-advocate,  etc.,  of  courts-martial 27 

Of  members,  recorder,  etc.,  of  courts  of  inquiry 106 

Procedure  during  administration  of 28 

Profane,  penalty  for  using 93 

To  deposition 36 

Objection : 

To  question  as  irrelevant 42 

To  f  uestion  how  recorded 124 

OU'ense: 

Act  as  both  civil  crime  and  military 12,  IG 

Against  person  or  property  of  civilian 93,  94 

Joint  charges  for IG 

Juri.sdiction  as  regards 13 

No  person  tried  twice  for  same. .  ^ 103 

Not  capital  and  to  the  prejudice,  etc 96 


INDEX.  171 

Offense— Continued.  Page. 

Ordinary,  limit  of  punishment  for 54 

Penitentiary 52 

Statute  of  limitation  for 32 

Officer: 

(yharged  with  crime  to  bo  arrested 97 

In  arrest  furnished  copy  of  charges 5 

Jurisdiction  over  retired 12 

Meaning  of  word  in  Articles  of  War 83 

To  keep  good  order  in  his  command 93 

Officer  of  Day : 

Duties  respecting  prisoners  and  charges 7 

Opinion : 

When  admissible  as  evidence 43 

Orders: 

Convening.    See  Convening  Order. 

General  and  special  publishing  proceedings 69 

Neglect  to  comply  with  standing 112 

Of  an  offi<:er,  disobedience  of 87 

Of  an  oihcer,  disobedience  of,  form  for  charge 112 

Of  a  noncommissioned  officer,  disobedience  of 112, 115 

Trials  by  summary  court  not  published  in 78 

Organization: 

Of  courts-martial 20 

Pardon : 

By  the  President G7 

By  the  reviewing  authority 67,  79, 105 

Of  penitentiar J' prisoners 67 

Parole : 

Penalty  lor  changing 91 

Pay: 

False  certificate  relating  to,  penalty  for  signing 86 

Forfeiture  of,  as  a  punishment 50 

Forfeiture  of,  only  in  favor  of  United  States 51 

Of  civilian  witness,  giving  deposition 36 

Of  civilian  witness,  refusing  to  testify 38 

Of  civilian  witness,  testifying 38 

Of  interpreter 26 

Of  officer,  suspension  of 103 

Of  reporter 26 

Of  soldier  awaiting  sentence 69 

Of  soldier  can  not  be  assigned  by  sentence 51 

Ketained,  when  not  included  in  sentence 51 


172  INDEX. 

Pay  Department :  Page. 

Civilian  witness  paid  by 37,  39 

Form  of,  for  account  of  civilian  witness 142 

Instrvictions  regarding  paj^ment  of  witness 143 

Interpreter  and  reporter  paid  by 26 

Penitentiary: 

Clemency  for  prisoner  confined  in 67 

Confinement  in,  limit  of 52 

Confinement  in,  offenses  punishable  by 52 

For  military  prisoners,  at  Fort  Leavenworth,  Kans 68 

Sentence  to  confinement  in,  mitigation  of 67 

Sentence  to  confinement  in,  what  to  state 64 

Sentence  to  confinement  in,  when  legal 63 

Unless  sentence  authorizes,  confinement  in,  illegal 68 

When  department  commanders  may  designate 68 

Perjury: 

False  swearing  distinguished  from 116 

Form  for  charge 116 

Limit  of  punishment 57 

Persuading  Soldier  to  Desert: 

Limit  of  punishment 57 

Off'ense  of 92 

Plea: 

Accused  stands  mute 31, 101 

Of  guilty,  statement  inconsistent  with 31 

Of  guilty,  testimony  after 31 

Special,  to  the  jurisdiction,  etc 31 

Special,  of  second  enlistment 32 

Special,  of  statute  of  limitation 32 

Special,  procedure  in  case  of 32 

Post: 

Abandoning,  etc 91 

Sentinel  sleeping  on  or  leaving  90 

Sentinel  sleeping  on  or  leaving,  forms  for  charges 113 

Post  Commander: 

Charges  laid  before  the 18 

Charges  usually  presented  to,  by  old  officer  of  day 7 

Determines  when  and  what  cases  go  to  summary  court 76 

Forwards  charges  for  serious  offenses 18 

Forwards  completed  proceedings  of  certain  courts 74 

Furnishes  company  commanders  copies  of  summary  court 

record 80 

Furnishes  detail  to  execute  warrant  of  attachment 34 

May  use  discretion  regarding  trial  for  minor  offenses 79 

Must  act  as  summary  court  in  certain  cases 75 


INDEX.  173 

Post  Commander— Continued.  Page. 

Must  personally  investigate  charges  forwarded 18 

Refers  charges  for  minor  ofleuses  to  summary-  eonrt 18 

Ileports  number  of  cases  tried  by  summary  court 74 

Post  Xoncommissioned  StafT: 

May  be  discharged  but  not  reduced 63 

Unless  they  object,  may  be  tried  by  inferior  courts 14 

See  also  Xoncommissioned  Officer. 

Postponement: 

Application  for.  when  made 29 

Extended  delay  wanted 29 

On  account  of  absent  witness 29 

Post  Return : 

Officers  who  act  as  summary  court,  reported  on 80 

Precedence : 

Military  ordinarily  gives,  to  civil  court 12 

President  of  a  Court-Martial : 

Duties  of 22 

The  officer  highest  in  rank  ou  court 22 

President  of  tlie  United  States: 

Asconiirming  authority 67 

As  convening  authority 10 

As  reviewing  authority C7, 73 

Limit  of  punishment  prescribed  by 53 

May  order  courts  of  inquiry 105 

Must  appoint  court  in  certain  cases 11 

Pardoning  power  of 67 

Proceedings  of  courts  appointed  by,  forwarded  to  Secretary 

of  War 73 

Proceedings  of  courts  to  be  confirmed  by,  forwarded   to 

Judge- Advocate-General 73 

Using  contemptuous  words  regarding 87 

Preyious  Convictions: 

By  civil  court,  inadmissible 49 

By  courts-martial,  evidence  of 49 

Consideration  of,  by  summary  court. 78 

Effect  on  punishment 59 

Evidence  of.  how  recorded 128,131 

Evidence  of,  submitted  with  charges 19 

Evidence  of.  when  admissible 59 

Evidence  of.  when  received  by  court 49 

Meaning  of 49 

Not  limited  to  those  lor  similar  offenses 49 

Prisoners: 

Abatement  allowed 71 

Confinement  of  after  trial 69 


174  INDEX. 

Prisoners— Continued.  Page. 

Confinement  of,  before  trial 4 

Counsel  for 25 

Deceased,  effects  of 107 

Duty  of  officer  receiving 7 

Escaped,  effects  of 71 

Forwarded  to  place  of  confinement 70 

General,  physically  examined  when  released 72 

In  arrest,  how  designated 6 

In  confinement,  how  designated 6,  G9 

Not  to  be  arraigned  in  irons ,   ...  21 

On  the  march ^ 8 

Penitentiary,  clemency-  for 67 

Placed  in  irons,  report  regarding. 70 

Releasing  without  authority,  offense  of 98 

Report  of,  when  and  by  whom  made 7 

Suffering  to  escape,  form  for  charge 115 

Suffering  to  escape,  limit  for 59 

When  to  be  separated 6 

Without  charges  against,  when  released 7 

Procedure  of  Courts-Martial.     See  Courts-Martial. 

Proceedings  of  Courts-Martial : 

Action  on,  by  reviewing  authority 66 

Application  for  copy  of 73 

Appointed  by  the  President 73 

Authentication  of 24, 65 

Communications  relating  to 73 

General,  revised  by  Judge- Advocate-General 73 

General,  where  filed  and  kept 73 

Inferior,  where  filed  and  kept 74 

Orders,  general  and  special,  publishing 69 

Orders,  publishing,  how  dated 69 

Requiring  confirmation  by  the  President 67,  73 

See  also  Record  of  Proceedings. 

Proceedings  of  Courts  of  Inquiry : 

Authentication  of lOfi 

Record  of,  as  evidence 46, 106 

Profanity : 

Penalty  for  using 93 

Professor,  United  States  Military  Academy  : 

Ineligible  as  member  of  court 9 

Proof  of  Intent : 

General  rule  for 46 

Prosecutor : 

Can  not  convene  general  court 11 


INDEX.  175 

Provisions:  Page, 

Violence  to  persons  bringing  to  can:  p 93 

Public  Stores : 

Taken  Irom  onemy,  secured  ibr  United  States 85 

Punishment: 

Ball  and  chain 50 

Branding  prohibited ^, 102 

IJy  carrying  heavy  log .W .     51 

Discretionary  or  fixed 50 

Effect  of  previous  convictions  on 59 

Flogging  forbidden 102 

For  contempt  of  court 101 

Forfeiture,  in  favor  of  United  States  only 51 

For  officers 50 

For  soldiers 50 

Guard  duty  as,  forbidden 51 

Imprisonment  beyond  term  of  culistmuut 51 

Limit  of.    See  Maximum  Limit  of. 

Of  post  noncommissioned  staff  and  hospital  stewards 63 

Proper  amount  of 50 

Penitentiary 52 

Power  of  reviewing  authority  respecting 68 

Solitary  confinement 62 

Substitutions  for  prescribed 62 

Substitutions  of,  application  of  rule 14 

Tattooing  forbidden 102 

Quarrels: 

Authority  to  quell 88 

Refusing  to  obey  noncommissioned  officer  quelling 55 

Quarters : 

Lying  out  of,  without  leave 90 

Lying  out  of,  without  leave,  limit  of  punishment 55 

Quitting:  Guard: 

Form  for  charge , 113 

Limit  of  punishment  57 

Offense  of 91 

Quorum: 

For  general  court 10 

Rank : 

Loss  of  relative,  as  punishment 50 

Of  members  of  courts 21 

Of  militia  officers  on  duty  with  regulars 107 

Of  regular  and  volunteer  officers 107 

Suspension  from 50 

Rape: 

Offense  of,  in  time  of  war 94 


176  INDEX. 

Recommendation  to  Clemency:  Page, 

Not  to  be  embraced  in  sentence 66 

Who  should  sign 66 

Record  of  Proceedings: 

Accurate,  to  bo  kept 65 

Accused  entitled  to  copy  of 105 

Application  for  copy  of 73 

Authentication  of 24, 65, 106 

Daily,  subscribed  by  judge-advocate 24,  65 

Disposition  of 73,  74 

Documents  made  part  of 47, 127 

Forms  for.    See  Forms. 

Forwarded  to  reviewing  authority 24 

Hours  of  session  noted  in 120, 129, 134 

Must  contain  a  complete  history  of  case 65 

Of  closed  session 65 

Of  summary  courts,  copies  furnished 80 

Presence  of  members,  how  recorded 120 

previous  convictions,  evidence  of,  recorded 128, 131 

Reading  of  record  of  preceding  day 125 

Recommendation,  where  recorded 66 

Revision  of 66 

Statement  of  accused,  when  written,  signed,  etc 127 

Statement  of  service— not  part  of  record 66 

See  also  Proceedings  of  Courts-Martial. 

Recruits : 

Articles  of  War  to  be  read  to 83 

Redress  of  Wrongs : 

Of  citizens 93 

Of  officers 89 

Of  soldiers 89 

Reduction  to  Ranks: 

Asa  punishment 50 

V>y  summary  court 78 

Form  for  sentence  for 137 

In  case  of  previous  convictions 60 

Prohibited  as  to  post  noncommissioned  staff  and  hospital 
stewai-ds 63 

Regimental  Courts-Martial.     See  Courts-Martial. 

Regulations : 

Part  of  written  militarj-  law 4 

Relieving  the  Enemy : 

Offense  of 91 

Remission : 

Of  forfeiture 69 

Of  sentence 67, 79, 105 


INDEX.  177 

Reporter :  Page. 

How  authorized 25 

lu  special  cases 26 

No  compensation  for,  if  in  Goverunient  service 2G 

Oath  of 29 

Pay  of 26 

Sworn  in  each  case 29 

Report,  False : 

Hy  noncommissioned  officer,  limit  of  punishment 59 

Report  of  Siiniinary  f  ourt  Cases : 

Form  for 132 

Forwarded  monthly 74 

Where  filed 110 

Report  of  Surgeon  on  Deserter: 

Form  for 118 

Reprimand : 

As  a  punishment 50 

Reproachful  Languaee : 

Penalty  for  using 88 

Retained  Pay : 

When  not  forfeited  hy  sentence 51 

Retainers  to  Camp: 

Jurisdiction  over 13 

Retired  Officers: 

Ineligible  as  members  of  courts 9 

Jurisdiction  over 12 

Retired  Soldiers: 

Jurisdiction  over 12 

Retreat : 

Failing  to  retire  at,  offense  of 90 

Retnrns : 

False,  penalty  for  making 85 

Of  regiments,  etc.,  made  monthly 84 

renalty  for  not  making 84 

Reviewing  Authority : 

Action  of  the  President  as 73 

Approval  of  sentence 66 

Can  not  change  finding 48 

Can  not  change  sentence 68 

Cjin  not  delegate  aut  Iioritj- 67 

Can  not  increase  punishment  awarded 68 

Can  not  postpone  sentence  of  dishonorable  discharge 69 

May  change  place  of  confinement 68 

May  direct  revision  of  record 66 


178  INDEX. 

Reviewing  Authority— Continued.  Page. 

Mitigation  by 67,79,105 

Mitigation  by,  for  long  confinement  before  trial 09 

Of  field  officer  8  court 8i) 

Of  garrison  court 105 

Of  general  court 60 

Of  regimental  court 105 

Of  summary  court -  -  79 

Orders  of,  pnbhsbing  pi'oceediugs 69 

Orders  of,  remitting  forfeiture 69 

Pardoning  power  of 67 

Suspension  of  sentence  by 68 

ReriKed  Statutes: 

Certain,  part  of  written  military  law 4 

Section  1343,  as  to  spies 108 

Sections  5306  and  5313,  as  to  trading  witb  enemy 108, 109 

Rerision  of  Record : 

By  wbom  directed 66 

Can  only  be  made  by  court 66 

Form  for 130 

Reward  for  Apprehension : 

"When  stopped  against  soldier  s  pay 52 

Robbery : 

Offense  of  in  time  of  war 94 

To  the  prejudice  of,  etc.,  limit  of  punishment 57 

Safeguard : 

Penalty  for  forcing , 94 

Sale  of  Victuals,  etc.: 

Duty,  etc.  upon  or  interest  in 87 

Seating  of  Court: 

Arrangement  of  seats 21 

Members  sit  in  order  of  rank 21 

Secretary  of  War: 

Ai^plication  for  clemency  forwarded  to 67 

Applied  to  when  expert  Avitnesses  are  necessary 38 

Approval  of,  for  confinement  in  State  penitentiary 68 

Certain  proceedings  forwarded  direct  to 73 

Sedition: 

Eeginning  exciting  etc 87 

Failure  to  report  or  suppress 87 

Selling  Clothing,  etc.     See  Clothing,  etc. 

Sentence : 

Abatement  of,  for  good  conduct. 71 

Approval  by  reviewing  authority 66 


INDEX.  179 

Sentence— Continned.  Page. 

Confirmation  by  the  President 67 

Contemplating  payment  of  stated  sum 64 

Date  of  commencement  of G9,  71 

Forfeiture  for  certain  number  of  months 64 

Forms  for 137 

Imposing  tours  of  guard  duty,  forbidden 51 

In  excess  of  legal  limit 69 

Meaning  of  word  days  in 71 

Mitigation  for  confinement  before  trial 69 

Not  oiierative  before  confinn.ation 69 

Of  an  officer  for  cowardice  or  fraud 103 

Of  death,  confirmation  of 104 

Of  death,  suspension  of 68 

Of  death,  vot«  upon O:},  102 

Of  dismissal  in  time  of  peace 104 

Of  dismissal  in  time  of  war 104 

Of  dismissal,  suspension  of 68 

Of  field  officer's  court 104 

Pardon  or  mitigation  of 67, 79, 105 

Procedure  when  awarding 63 

Punishment  discretionary,  limit  ascertained 03 

Recommendations  not  embraced  in 66 

Respecting  general  officers 104 

Reviewing  authority  can  not  change 68 

Second,  begins  when 71 

To  confinement  at  post 64 

To  confinement,  begins  when 69,71 

To  confinement,  in  penitentiary  for  over  one  year 68 

Sentinel: 

Allowing  prisoner  to  obtain  liquor,  limit  of  punishment 59 

Disclosing  or  changing  watchword 91 

Disrespect  to,  limit  of  punishment 59 

Drinking  with  prisoner,  limit  of  punishment 59 

Leaving  post  before  being  relieved 90 

Quitting  post  to  pillage 91 

Resisting  or  disobey  ing,  limit  of  punishment 59 

Sleeping  on  post,  form  for  charge 113 

ShH^ping  on  post,  offense  of 90 

Snttering  prisoner  to  escape,  form  for  charge 1 15 

Suflering  prisoner  to  escape,  limits  of  punishment 59 

Soldier: 

Charged  with  crimes  to  be  confined 97 

Elfects  of  deceased,  disposition  of 107 

J  urisdiction  over  retired 12 

Meaning  of  word  in  Articles  of  War 83 


180  INDEX. 

Solitary  Conflnement :  Page. 

Limit  of 62 

Special  Orders.     Seo  General  and  Special  Orders. 
Specittcation : 

Instrnctions  for  drawing 17 

Spy: 

Coiifirniation  of  sentence  of 10^ 

Jurisdiction  over IS 

Statute  relating  to 108 

Staff  Officer: 

As  summary  court 7C 

8tan(iing  Mute.    See  Plea. 

Standing  Order: 

;Ne';lect  to  comply  with Ill 

Statement : 

Inconsistent  with  plea 31 

Kecord  of 127 

Submission  of  sworn 40 

Statement  of  Service : 

Form  for US 

Not  part  of  record G6 

To  accompany  charges 19 

Statute  of  Limitation.     Sec  Limitation,  Statute  of. 

Stores : 

Accountability  for  military 85 

Military,  lost,  spoiled,  etc 86 

Public,  taken  from  the  enemy 85 

Striliing  Superior  Officer: 

Form  for  charge 112 

Offense  of 87 

Subpoena  (or  Summons)  : 

By  civil  court 37 

Forms  for 138, 139 

Officer  or  soldier  receiving 37 

Proof  of  service 33 

Sent  through  military  channels 32 

Sent  with  interrogatories 36 

Service  of 33 

Substitution  of  Punislinient: 

Application  of  rule  for 14 

Ilule  for 62 

Suffering  Prisoner  f  o  Escape : 

Forms  for  charges 115 

Limits  of  punishment 59 


INDEX.  181 

Summary  Court.    See  Courts-Martial.  Page. 

Sunday: 

'Trials  on,  by  auinmarj- court 79 

Superiiitendoiit,  U.  S.  Military  Academy: 

Convenes  courts  for  trial  of  cadets 11 

Surgeon : 

Acting  assistant,  ineligible  as  member  of  court 9 

Examines  general  prisoners  on  release 72 

Report  of,  to  accompany  charges 19 

Report  of,  to  accompany  charges,  form  for 118 

Surrender: 

Compelling  commander  to 91 

Of  deserter,  meaning  of 53 

Suspension: 

As  a  punishment CO 

From  rank  and  command 50 

Of  pay  and  emoluments 103 

Of  sentence  of  death  or  dismissal 68,  105 

Tattooing: 

Asa  punishment,  forbidden 102 

Territoriality : 

As  affecting  jurisdiction 12 

Testimony : 

Corrections  in 125 

Tlireatening  and  Insulting  Language : 

Limit  of  punishment  for  using,  to  noncom.  officer 58 

Trading  with  the  Enemy : 

Statutes  relating  to 108,  109 

Trial: 

Delay  in,  by  summary  court 76 

For  officers  summarily  dismissed 12 

Hours  of 77,  102 

On  Sunday,  by  summary  court 79 

Postponement  of 29 

Second,  for  same  oifense 103 

Uniform : 

Of  accused 20 

Of  judge-advocate 20 

Of  members 20 

Of  military  witness 21 

Victuals,  etc. : 

Duty  upon  or  interest  in 87 

Voire  Dire : 

Examination  on 121 


182  INDEX. 

Volunteers:  Page. 

Officers  of.  as  members  of  court S 

Eegnlar  officers  can  not  try 9 

Vote: 

Method  of  taking 22 

Tie  22 

Upon  death  sentence 102 

Warrant  of  Attachment : 

By  whom  issued 33 

Force  necessary  to  execute 34 

Form  for 140 

Officer  executing,  served  with  writ  of  habeas  corpus 34 

Procedure  in  issuing 34 

Summary  court  can  not  issue 77 

Watchword : 

Penalty  for  disclosing  or  changing 91 

Wife: 

As  witness 40 

Witness: 

Accused  as 40 

Attachment  of.    See  Warrant  of  Attachment. 

Attendance  of,  civilian,  how  procured 33 

Attendance  of,  in  capital  or  special  cases 37 

Attendance  of  military,  how  procured 33 

Attendance  of,  without  State,  etc 35 

Competency  of,  accused  as  witness 40 

Competency  of,  general  rule  for 40 

Competency  of  wife  as  witness 40 

Credibility  of,  character  of  accused 45 

Credibility  of,  bow  attackable 45 

Credibility  of,  party's  own  witness 45 

Departure  of 37 

Deposition  of.    See  Deposition. 

Examination  of,  by  court 44 

Examination  of,  manner  of 41 

Examination  of,  opening  questions 41 

Examination  of,  rules  to  be  followed 41 

Examination  of,  witnesses  separated 41 

Examination,  direct,  opinion,  when  admissible 43 

Examination,  direct,  questions  on 42 

Examination,  cross,  questions  on 43 

Examination,  cross,  to  what  confined 43 

Experts,  employment  and  pay  of 38 

Experts,  testimony  of 43 

Rebuttal 44 


INDEX.  183 

Witness— Continued.  Page. 

lle-exaniination 44 

Fees  of,  before  civil  court 39 

Fees  of,  certificate  of  attendance 38 

Fees  of  civilian,  in  Government  employ 38 

Fees  of  civilian,  not  in  Government  employ 39 

Fees  of  civilian,  refusing  to  testify 38 

Fees  of,  form  for  accounts 142 

Fees  of,  instructions  regarding 143 

Oath  of 28 

Uniform  of 21 

Wounding: 

With  intent  to  kill,  etc.,  in  time  of  war 94 

Wrongs.    See  Redress  of  Wrongs. 

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